3

Abstract

I would like to expressly thank Respectable professor Dr. Saadiya Mam For her constant and
valuable guidance to understand such a Complex subject in a broad perspective. I express my
true gratitude for the guidance and support offered during class and additional directions to
effort for authentic writing as Without her , the Assignment would not be what it is.

I am also obliged to the Pieces of writing which I went through and borrowed for authentic and
proper explanation. For which I acknowledge wherever required.

The writing is dedicated to three important concepts of private international law: RESIDENCE
,DOMICILE ,AND NATIONALITY and their relevance in respect to conflict with marriage
divorce and custody of child.

Efforts have been made to study and present these concepts with legal and judicial aspects in
different states .Special emphasis is given to the international conventions for enabling
harmonious balance and interconnectivity in these legal notions .
 4

Table of content. Page no.

1. RESIDENCE,HABITUAL RESIDENCE AND LEGAL IMPLICATIONS………..5 to 7

● Principle established through judicial interpretation……………………………..

2. ESSENTIALS FOR HABITUAL RESIDENCE…………………………………….7 to 10

● The requirement of actual residence ….

● Settled purpose
● Abandonment
● Habitual residence of children

3. DOMICILE MEANING AND LEGAL IMPLICATION……………………………...10 to

14

● Kinds of domicile
● Determination of Personal Law

4. NATIONALITY MEANING AND APPLICABILITY UNDER PRIVATE

INTERNATIONAL LAW
……………………………………………………………………………………14 to 16

● Nationality under Indian Legal system

● Applicability of Rule of nationality under private International law
● Comparison between the Domicile and Nationality

Conclusion

Bibliography
 5

RESIDENCE,HABITUAL RESIDENCE AND LEGAL IMPLICATIONS

Residence"appears to be the most appropriate available concept to meet the demands of a fluid,
modern society”1

The definition and application of the concept of habitual residence has received frequent
attention from the English judiciary in the last two decades, and their approach has maintained
considerable harmony with decisions of courts of other common law countries.Much of the
English case law has arisen in the context of child custody or abduction, but such cases consider
the habitual residence of the adults, as well as the children, involved. The habitual residence of
the child involved is already the principal basis of English custody jurisdiction in the absence of
matrimonial proceedings.2and the overriding effect of matrimonial proceedings will be
diminished if the States gives effect to the Hague Convention on Parental Responsibility and
Child Protection 1996,6 and in any event when the EC Matrimonial Regulation enters into force
on 1 March 2001.

In respect of matrimonial proceedings, approximately equal significance is currently given to the

habitual residence and the domicile of each spouse by Part II of the Domicile and Matrimonial
Proceedings Act 1993 (as regards direct jurisdic- tion),12 and by Part II of the Family Law Act
1986 (as regards recognition of foreign decrees).3

1
Graveson, Conflict of Laws, 194 (7th ed., 1974).
2
See Part I of the Family Law Act 1986. But there appear to be no territorial restrictions on English
jurisdiction to make a parental responsibility order under s. 4 of the Children Act 1989; see Re S [1998]
1 WLR 1701 (CA).
3
Part II implements the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal
Separations, to which the United Kingdom, seven other EC Member States (Italy, the Netherlands,
Luxembourg, Denmark, Sweden, Finland and Portugal) and nine other countries (Australia, Hong Kong,
Cyprus, Czech Republic, Egypt, Norway, Poland, Slovakia and Switzerland) are parties.
 6

Habitual residence is also used in European Community law in connection with the social
security rights of migrant works.there are many valuable judgment in this regard .Utmost
importance is now given to approach of Dicey-like rules from the case laws which may enable
the concept of habitual residence broadly and also establish the legal certainty regarding this
concept.

Let us have some discussion on the very leading judgment of different courts and then to analyze
the Dicey-like rule and its relevance .

Principle established through judicial interpretation

● The central idea involved in the concept of habitual residence was defined by Lord
Scarman in Shah v Barnet LBC:26 an individual's abode in a particular place or country
which he has adopted voluntarily and for settled purposes as part of the regular order of
his life for the time being, whether of short of long duration. He also made clear that such
an abode is compatible with temporary or occasional absences, even of long
duration.Lord Scarman's definition applies to both ordinary residence and habitual
residence, and specifies their natural, ordinary and generally applicable meaning. This
meaning is excluded only where the relevant statutory framework or context so requires.4

1.SWADDLING V ADJUDICATION OFFICER 5. It is the very important judgment of the

European Court regarding the importance of habitual residence and factors to be considered by
courts .The European Court equates a person's habitual residence to the habitual centre of his
interests. It accepts as relevant factors: the person's family situation; the reasons which led him to
move; the length and continuity of his residence; the fact (where this is the case) that he is in
stable employment; and his intention as it appears from all the circumstances.

2.NESSA V CHIEF ADJUDICATION OFFICER 6 This case involved

4
Peter Stone, The Concept of Habitual Residence in Private International Law, 29 ANGLO-AM. L. REV.
342 (2000).
5
Case C-90/97, [1999] ECR 1-1075.
6
29. [19991 1 WLR 1937 (HL).
 7

a claim for income support, not based on European law, that, in relation to the determination of
habitual residence, the person's bringing possessions, doing everything necessary to establish
residence before coming, having a right of abode, seeking to bring family, having durable ties
with the country of residence or intended residence, and many other factors have to be taken into
account.

2. ESSENTIALS FOR HABITUAL RESIDENCE

In examining the definition of habitual residence more clearly following essentials are required.

● The requirement of actual residence

● That of settled purpose;
● The requirements for abandonment
● And the position of children

Now let us discuss the following heads in detail.

1.The requirement of actual residence

The adoption of an abode, as envisaged by Lord Scarman in Shah, requires actual residence (that
is, presence in person), as well as a settled purpose.

Re j..To become habitually resident in a country an individual must actually reside there for an
appreciable period of time.Thus, whatever his intentions, an immigrant moving to a new country,
or even a person returning to his country of origin, does not become habitually resident there
immediately on arrival. On the other hand, an emigrant loses his existing habitual residence as
soon as he leaves the country in question intending not to return.7

In this we can say that this judgment by Lord Brandon was different in comparison to the
Swaddling judgment where European Court ruled that no such requirement, of actual residence

7
.Re j.[1990] 2 AC 562. In that case an unmarried mother of English origin who had settled in Western
Australia surreptitiously left her cohabit- ant, the child's father, and returned to England with the child with
a view to long-term residence. The father's application for summary return of the child under the Hague
Convention on child abduction failed because: at the time of her departure the mother alone had parental
responsibility for the child under Western Australian law; by her departure with the child she abandoned
her own and the child's habitual residence in Western Australia; and the child was thus no longer
habitually resident there when, a few weeks later, the father obtained a custody order from the Western
Australian court.
 8

for an appreciable period, exists in the concept of habitual residence as used in Regulation
1408/71.

2.Settled purpose

In Shah Lord Scarman envisaged two mental elements in ordinary or habitual residence. The
abode must be adopted voluntarily, and for settled purposes, as part of the regular order of the
person's life for the time being, whether of short or long duration.Elaborated on the degree of
settled purpose required. He explained that the purpose may be one; or there may be several. It
may be specific or general. All the law requires is that there is a settled purpose. This does not
mean that the person must intend to stay where he is indefinitely; his purpose, while settled, may
be for a limited period. Education, business or profession, employment, health, family, or merely
love of the place are common reasons for a choice of regular abode, and there may well be many
others. All that is necessary is that the purpose of living where one does has a sufficient degree of
continuity to be properly described as settled. Thus proof of ordinary or habitual residence
depends more on the evidence of objective matters than on evidence as to state of mind.

3.Abandonement.

'A person may cease to be habitually resident in one country in a single day if he or she leaves it
with a settled intention not to return to it but to take up long-term residence in another country
instead.' Thus abandonment, like acquisition, of an habitual residence requires both a factual and
a volitional element. The person must both depart and form a settled intention not to return there
for the purpose of further residence of substantial duration.8

4.Habitual residence of children

It is to be noted that habitual residence of children is determined in same way as determined in

case of adult and the determining factor is the actual residence and settled Purpose but there is
one difference that is in case of child the residence is determined by reference to actual residence

8
Friedrich v Friedrich 983 F2d 1396 (C6, 1993);
 9

while settled purpose is determined by reference to the intention as to child of the person who
has the parental responsibility of the child.

Dicey-like rule

Summary of the above discussion.

Rule 1. Habitual residence in general

(1) There is no difference between the habitual residence and the ordinary residence of an
individual.

(2) It is possible for an individual to have no habitual residence anywhere at a given time.

(3) Whether an individual may have more than one habitual residence at the same time depends
on the purpose in question. For the purpose of private international law, an individual cannot
have more than one habitual residence

at the same time, unless the statutory wording or the context requires the acceptance of such
multiplicity.

(4) An existing habitual residence is presumed to continue unless the contrary is shown, and the
burden of establish- ing a change in a person's habitual residence rests on the party who asserts
such change.

2.An adult becomes habitually resident in a country by actually residing there for an appreciable
period of time, voluntarily and with a settled purpose of continuing to reside there, either
indefinitely or for a substantial period of time.

(2) An adult abandons his existing habitual residence in a country by leaving the country or
remaining absent therefrom, with a settled purpose of not returning with a view to resuming
residence indefinitely or for a sub- stantial period of time.

(3) For these purposes, one month, but no shorter period, constitutes an appreciable period of
time; and three years, but no shorter period, constitutes a substantial period of time.

Rule 3. The habitual residence of children

 10

(1) For present purposes a person remains a child until he attains the age of 16, when he becomes
an adult.

(2) In general the habitual residence of a child follows that of the person or persons who have
parental responsibility for him and with whom he has his home.

3. DOMICILE MEANING AND LEGAL IMPLICATION.

“Domicile means permanent home, and if that was not understood by itself no illustration could
help make it intelligible”9

According to MORRIS definition in “It is important to identify an individual’s personal law,

which governs questions concerning the personal and proprietary relationships between
members of a family. Place of birth is an inadequate criteria by which to identify the personal
law”10. The domicile of a person is in that country in which he either has or is deemed by law to
have his permanent home.11The concept of domicile has been explained by a distinguished
American Judge, Oliver Wendell Holmes J, “the very meaning of domicile is the technically
pre-eminent headquarters that every person is compelled to have in order that certain right and
duties that have attached to it by the law may be determined”12

General principles of Domicile:

1.No person can be without a domicile;

2. No person can at the same time have more than one domicile;

3.An existing domicile is presumed to continue until it is proved that a new

domicile has been acquired; and

4.. Domicile denotes the connection of a person with a territorial system of

law.

Kinds of domicile
9
Paras Diwan: Private International Law,4th (End),p145.
10
11
Morris, the Conflict of Laws, 7th Edition, p29.
12
Williams V.Osenton(1914).
 11

1.Domicile by origin

2.Dimicile by choice

3.Domicile by dependency

Every person is born with a Domicile of origin. It is a domicile received by him at his birth. The
domicile of origin of every person of legitimate birth is the country to which at the time of his
birth his father was domiciled. Hence, the domicile of origin, though received at birth, need not
be either the country in which the infant is born, or the country in which its parents are residing,
or the country to which its father belongs by race or allegiance or the country of the infant’s
nationality.

In the case of a posthumous child, the rule in English law is that such a child has for the
domicile of its mother and not of its father. In India the rule appears to be different, for here the
domicile of the posthumous child will be that of the country in which its father was domiciled at
the time of his (father, s) death. 13

Domicile of origin has no necessary connection with the place where the child is born, and it is
theoretically possible for persons to enjoy a domicile of origin for several generations even if
none of the persons has resided in such country for any appreciable length of time. 24 14 the
domicile of origin continues to attach to each person till he obtains a different domicile called
domicile of choice, or till the law attaches a different domicile called domicile to him , as when
a women , on her marriage , was regarded at common law to have , by such marriage , acquired
the domicile of her husband15

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 the domicile of origin.16

13
Indian Succession Act, 1925, s.7. & D.P Joshi v. State of M.B. and Pradeep jain v. Union of
India,(1984)3SCC 654.
14
Dicey Morris, Conflict of Law, 13th (Edn).
15
Ibid, page 85
16
Yogesh Bhardwaj v. State of Uttar Pradesh AIR 1991 SC 356.
 12

Determination of Personal Law

Domicile of origin provides personal law for resolving the legal issues of a person. Due to its
consistency and the fact that it can never be abandoned completely, therefore, its revival provides
a personal law where domicile of choice or dependence is abolished. Harrison v Harrison17and
Bell v Kenned18are the valid examples where in the former case, domicile of origin revived when
domicile of dependence was abandoned and in the latter case, domicile of origin revived when
domicile of choice was abandoned.

Domicile of choice

A person can acquire a domicile of choice by combination of

(I) actual residence in particular place, and

(II) intention to remain there permanently or for an indefinite period.

while the domicile of origin is received by operation of law at birth, the domicile of choice is
acquired by the actual removal to another country accompanied by his place of residence or
settlement, a permanent home19.

Craignish v. Hewitt

It is a well known english case law regarding domicile by choice it was held in this decision that
acquired if a person has established a fixed habitation in a place without any present intention of
removing from it.The same principle was adopted by Indian court of law in Central Bank of
India v. Ram Narain20

One more popular judgment on same court is Sondur Rajni v. Sondur Gopal21

17
[2009] All ER (D) 61 (Feb).
18
L. R.] 1 Sc. & Div. 307
19
Private international Law, Author-Paras Diwan, Publication- Deep &Deep, 4th Edition, p165.
20
AIR 1955 sc 36.
21
(2005)4Mah LJ 688.
 13

Where Hindus, whose domicile of origin was India, 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 Hindu Marriage Act 1955 .The parties were domicile in India. It
has been held that if the domicile of origin was British, it had to be established that the person
had acquired a domicile of choice in India. And a declaration to that effect was not, by itself
sufficient.

3.Domicile by dependency

Which means that the domicile of the dependent person/s is dependent on

the domicile of someone else.The object of determining a person’s domicile is to connect that
person with some legal system for certain legal purposes. In General at Common Law,
dependents, that is, married women, minors and mentally deficient persons were regarded as
incapable of acquiring a domicile on their own, and their domicile followed that of the person
they were regarded as being dependent on. The Common law rule provided that wives are
dependents of their husbands, minors the dependents of the parent through whom the minor
derives his domicile of origin, the father in the case of legitimate children born whilst he was
alive and the mother in the case of both illegitimate children and legitimate children born after
the death of the father . They are not capable of changing their domicile of origin if on the other
hand the husband or the appropriate parent can change their domicile .

Though it is to be noted that in respect married woman is has been subjected to utmost
controversy and criticism as it is based on old english maxim which both husband and wife as
one.The rule of unity of domicile if husband and wife generally suppress and subject to
discrimination on right of married woman.

In india the above rule is still followed 22

The rule that married women had the domicile of their husband has, however, been abolished in
Australia, Canada, the Republic of Ireland, and New Zealand so that in all these countries, a
married woman is treated as having an independent domicile like any other person.

22
Section 15 &16 of the Indian Succession Act are based upon the old English rule.
 14

Determination of Personal Law

Domicile of origin provides personal law for resolving the legal issues of a person. Due to its
consistency and the fact that it can never be abandoned completely, therefore, its revival provides
a personal law where domicile of choice or dependence is abolished. Harrison v Harrison[10]
and Bell v Kennedy[11] are the valid examples where in the former case, domicile of origin
revived when domicile of dependence was abandoned and in the latter case, domicile of origin
revived when domicile of choice was abandoned.

NATIONALITY MEANING AND APPLICABILITY UNDER PRIVATE

INTERNATIONAL LAW

Nationality is a political, legal and spiritual relationship that links an individual to a state.
Nationality is a political relationship because it is caused by the sovereignty of the state. It is the
state that determines who its nationals are and what conditions are needed to acquire the
nationality. In fact, nationality creates the individual’s political status through the commitment
of his/her loyalty toward obedience from the state’s law. This obedience is the individual’s
response to the protection that the state provides him/her with.

Everyone should have a nationality as "negation of statelessness" is One important aspect of the
law of nationality is that every person should belong to a particular nationality. If every person
shall belong to a particular nation-state, this would help in eliminating the problem of
statelessness. This further ensures protection and enjoyment of fundamental rights which have
been discussed in the latter part of the article.

Having not more than one nationality (negation of dual nationality)- It is usually observed that
people acquire dual nationality. It is, however, found that dual nationality has a negative effect on
assimilation, political connectedness and social integration. Not only this, people with dual
nationality are often identified as people with dual allegiance or loyalty who have the potential to
act contrary to the government’s interests. Due to all such issues, it is recognized as an
established principle of the law of nationality that seeking dual citizenship is discouraged.
International law, in order to avoid problems arising out of the concept of dual nationality,
recognizes the concept of “dominant and effective nationality”, under which a dual national
 15

will hold only one dominant and effective nationality for the purposes of international law to one
nation that holds their primary national allegiance, while any other nationalities are subordinate.

Nationality under Indian Legal system

Under Indian Constitution Articles 5 to 11 deal with provisions relating to citizenship. Articles 5
to 10 deal with citizenship at the time of coming into force of the Constitution (i.e. until January
1950). Article 11 empowers the Indian Parliament to make Regulations on Citizenship by law. It
was in exercise of this power that the Citizenship Act, 1955 was enacted.

fundamental principles on Indian Citizenship

India is a constitutional democracy which, by law and the Constitution grants people of all faiths,
creeds, castes, languages and genders citizenship. All are equally and without discrimination,
Indian.

Under the Citizenship Act, 1955, there are 5 methods of acquiring citizenship:

A. by birth
B. by descent (those born outside India from Indian citizen parents)
C. by registration
D. by naturalisation (being ordinarily resident in India for twelve years)
E. by acquisition of territory (e.g., Sikkim)

A foreigner can apply for citizenship by means of registration or naturalization, each of these
have certain specific provisions that need to be fulfilled in order to acquire citizenship.

Applicability of Rule of nationality under private International law

The old Hague Conference Conventions on questions of personal status all have nationality as
the connecting factor or test.'later own there was clash arose between two legal groups one using
domicile as criteria to resolve the dispute while other group advocated nationality as connecting
factor .The Hague convention took notice of the clash between the two but no definite decision
could be reached .A Convention on the Law Applicable to Support of Minor Children was
produced at the 1956 session. In it the law of the habitual residence of the child is made the
applicable law, but Contracting States are free, under stated conditions, to substitute another