Report No. 110

Chapter 5

Domicile (Sections 4 to 19)

I. Importance of the Concept of Domicile, and its Meaning

5.1. Scope.-

The next few sections are concerned with the law applicable to succession (section 4). The most important doctrine dealt with in those sections is that of domicile (Sections 5-19).

5.2. Domicile in private international law.-

The importance that the concept of domicile possesses in common law jurisdictions is primarily due to the fact that domicile is a basic concept in private international law as administered in those jurisdictions.1 In Indian law, the competence of Indian courts to grant divorce2 and the law applicable to succession to movables3 are illustrations of fields of private international law in respect of which domicile is paramount by statute.4

We shall consider later certain points of detail which arise out of the sections dealing with his subject in the Succession Act. The present place, however, seems to be appropriate for making a few general observations as to domicile, which is central to the core of many legal systems.

1. See Law Commission of India, 65th Report (Recognition of foreign divorces).

2. E.g. section 2, Indian Divorce Act, 1869.

3. Section 5(2), Indian Succession Act, 1925.

4. Para. 5.5, infra.

5.3. The status of a person, the matrimonial and family relation and many other important questions are governed by domicile. The principle of domicile is, in fact, the core of the system of private international law. At the present day, the plaintiff's domicile or residence is a basis of jurisdiction in the majority of countries.1

1. T.M.C. Asser Institute, Statutory Private International Law, (1971), pp. 36, 110, 131, 170, 190, 199; Rabel Conflict of Laws, (1958), Vol. I, pp. 429, 432, 434, 453; A.L.I., Restatement Second Conflict of Laws, section 71; (1972) 20 American Journal of Comparative Law, pp. 1, 16, 22-2; (English) Domicile and Matrimonial proceedings Act, 1973, section 5.

5.4. Domicile the essence.-

In the elegant phrasing of Cheshire,1 "Domicile is to status what local space is to a tangible thing".

1. Cheshire Private International Law, (1947), 3rd Edn., p. 147, cited in Levontine Choice of Law and Conflict of Laws, (1976) p. 58, footnote 130.

5.5. Domicile in Indian Legislation.-

That domicile is an important concept is as much true of the Indian Legal system as it is of others. By way of illustration, we may mention certain enactments in force in India in which domicile has been recognised as sufficient for courts to assume jurisdiction or as relevant for the purposes of determining the applicable law.

For example, the Special Marriage Act,1 which extends to the whole of India except the State of Jammu and Kashmir, applies also to citizens of India domiciled in the territories to which the Act extends, if those citizens are in the State of Jammu and Kashmir. The Hindu Marriage Act,2 which extends to the whole of India except the State of Jammu and Kashmir, applies also to Hindus domiciled in the territories to which the Act extends, who are outside the said territories.

Further, while the Act applies to Hindus, it also applies to any other person domiciled in the territories to which the Act extends being a person who is not a Muslim, Christian, Parsi or Jew by religion.

It may be mentioned that as early as 1856, the Indian Legislature recognised domicile as a basis of jurisdiction3 in regard to certain proceedings concerning family law in Indian Courts.

1. Section 1(2) Special Marriage Act, 1954.

2. Sections 1(2) and 2(1)(c), Hindu Marriage Act, 1955.

3. Section 3, Widow Marriage Act, 1856.

5.6. Indian decisions in the field of private international law.-

These are examples relevant to the application of Indian law or the jurisdiction of Indian courts. Correspondingly, Indian courts recognise that certain matters relating to status are governed by the law of the country of domicile. For example, in one case1 which went upto the Privy Council, deed of adoption had been executed by a Hindu widow domiciled in Pondicherry (then in French India). It was held by the Privy Council that the widow's capacity to adopt a son to herself, and the status of the child so adopted as her adoptive son, are matters to be determined according to French Law (the law of domicile).

1. Nataraja v. Subbaraya, AIR 1950 PC 34.

5.7. Domicile-meaning.-

In determining the meaning of "domicile", judicial construction plays an important part and this remains true even of countries where the rules have codified part. Lord Cranworth in Whicker v. Hume, (1858) 7 HLC 124 (160) said that domicile meant "home, permanent home, and if you do not understand your permanent home, I'm afraid that no illustration drawn from foreign writers will very much help you to it". This is generally regarded as a workable description.

But even this is not strictly accurate. A person may be domiciled in a country which is not, and never has been, his home, as in the case of married women in countries where the law on the subject is not altered by statute. By allowing a married woman to acquire her own domicile, one obvious cause of this anomaly goes. Again, a person may have more than one "home", but only one "domicile". Conversely, a person may be homeless, but never lacking a domicile.

English law attaches excessive importance to the domicile of origin-such that the domicile of origin revives to fill the gap left when a domicile of choice as abandoned and before another is acquired. Further, English law requires a heavy burden of proof before it admits that a domicile of origin has been thrown off. One must note also the excessive emphasis on animus (intention), as a factor in the acquisition of a domicile of choice.

5.8. Complexity.-

Domicile is thus "an idea of law".1 But, in the words of Morris,2 although "originally a good idea the once simple concept has been so overloaded by a multitude of cases that it has been transmitted into something further and turther removed from the practical realities of life". We are referring to this aspect in order to explain why, in some of the succeeding sections, we have made an attempt to see that the provisions of the law reflect the practical realities of life.

1. Bell v. Kenny, 1868 LR 1 Sec & Div 307 (320) (Lord Westbury).

2. Morris Conflict of Laws, 1971, p. 13.

5.9. The common law system.-

While, as stated above, domicile is, an important concept both in internal legislation and in regard to the recognition of certain foreign legal adjudications, it is a peculiarity of the common law system that the concept of domicile is underscored by certain rules which almost assume the form of categorical imperatives. These are-

(1) Every person has a domicile.1

(2) There is no period during the life of a human being at which he may not have a domicile. No gaps are recognised by law, in this regard.2

(3) A person can have only one domicile at a time.3

Holmes announced that4 domicile "in its very nature is one, and if in any case two are recognised for different purposes, it is a doubtful anomaly".5

1. Cf section 7, Succession Act.

2. Cf sections 9 and 13, Succession Act.

3. Cf section 5, Succession Act.

4. Williamson v. Osenton, (1,914) 232 US 619 (624).

5. See now Second Restatement on Conflict of Laws, section 11(2), (1971).

5.10. Tenacity of the law.-

The combined operation of these rules accounts for the tenacity with which the law clings to the domicile of origin and the rigidity with which some of the rules are formulated. To some extent, this rigidity is reflected in the attitude of the law as to the domicile of minors and married women.