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Report No. 110

VII. Domicile of Child at Birth

5.26. Section 7.- Section 7 reads

"The domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled; or, if he is a posthumous child, in the country in which his father was domiciled at the time of his father's death.

Illustration

At the time of birth of A, his father was domiciled in England. A's domicile of origin is in England, whatever may be the country in which he was born."

5.27. Section 7-latter half-posthumous child-English law.-

We have a comment on the latter half of section 7, which provides that the domicile of origin of a posthumous child is that of the father at the time of the father's death. The English law on the subject-at least according to the general understanding,-is that the domicile of a posthumous child follows that of the mother. The rule has in substance, been so stated by Cheshire1 and Dicey2. In fact, Dicey, in an earlier edition3, (1928) gave the following illustration of the English rule on the subject:-

"D is a person posthumous whose father was domiciled at the time of his death in England. At the time of D's birth his mother has acquired the domicile in France. D's domicile of origin is French".

The illustration given by Dicey in his 1973 edition is4-

"H and W are married and domiciled in Scotland. H dies and W immediately acquires a domicile of choice in England. After she has done this she gives birth to D, who is H's son. D's domicile of origin is (semble) English".

1. Cheshire Private International Law, (1970), p. 17.

2. Dicey Conflict of Laws, (1973), p. 93, Rule 9(2), and p. 94 (illustration 2).

3. Dicey Conflict Of Laws, quoted by Henderson Succession Act, (1928), p. 20.

4. Dicey Conflict of Laws, (1973), p. 94, Illustration 2.

5.28. Demerit of present section 7.-

In our opinion, the English rule on the subject represents a just approach. The present Indian rule does not accord with reality, and may even create an anomaly. The present provisions-i.e. section 7, latter half, when read with section 9 (which provides that the domicile of origin prevails until a new domicile has been acquired)-would lead to the position that for about eighteen years, the child would continue to have the father's domicile, even though the mother with whom he is living might have, after the father's death, migrated to another country.

To force the child to hold on to the father's domicile in such circumstances is to introduce a fiction which go too far. There is, therefore, need to substitute in section 7, latter half, the mother's domicile in place of the father's.

5.28A. Section 14 considered.-

Of course, if section 7, latter half, is amended as recommended above, it would follow that the domicile of the posthumous child would (by virtue of section 14) automatically follow the domicile of the mother during minority. In certain very exceptional circumstances this rule might not be beneficial to the child, say, for example, when the mother deliberately and mala fide makes a change in domicile so as not to benefit the child.

However, this problem can be avoided by amending section 14 also1, to the effect that, where the change of domicile effected by the mother is not "for the welfare of the minor, the change in the domicile of a minor which may follow from a change of domicile on the part of the mother is not to be regarded as a necessary consequence of a change of the mother's domicile.

1. To be considered under section 14.

5.29. Recommendation to amend section 7, latter half and section 14.-

In the light of the above discussion, we recommend that section 7, latter half, as well as section 14,1 should be amended as indicated below:-

"7. The domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled; or, if he is a posthumous child, in the country in which his mother was domiciled at the time of his birth.

Illustration (i)-At the time of the birth of A, his father was domiciled in England, 'A's domicile of origin is in England, whatever may be the country in which he was born.

Illustration (ii)-H and W are married and domiciled in England. H dies and W immediately acquires a domicile of choice in India2. After she had done this, she gives birth to S, who is H's son. S's domicile of birth is in India."3

The following words should be added at the end of the Exception to section 14:

"or if the parent has changed his domicile mala fide."4

5.30. Section 8-domicile of origin of illegitimate child.-

This takes us to section 8, which provides that the domicile of origin of an illegitimate child is in the country in which at the time of his birth, his mother was domiciled.

The section needs no change.

1. To be carried out under section 14 also.

2. Compare section 10.

3. Compare Dicey Conflict of Laws, 1973, p. 94, Illustration 2 (para. 5.27, supra).

4. To be carried out under section 14 also. See para. 5. 52, infra.



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