Report No. 110
VIII. Acquisition of Domicile
5.31. Section 9-Continuance of domicile of origin.-
Section 9 provides that the domicile of origin prevails until a new domicile has been acquired. This is a rule of convenience based on the implicit postulate that a person must at all times during his life have a domicile.
5.32. Section 10-Acquisition of new domicile.-
Connected with section 9 is section 10, which provides that a man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin. The emphasis is on the words "fixed habitation". The general principle in this regard was best put by Lord Westbury, who observed that the domicile of choice 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 illness"1.
1. Udny v. Udny, 1869 LR 1 Scottish Appeals 441 (458) (HL).
5.33. Section 10-Explanation.-
Faithful to this general principle, the Explanation to section 10 provides that a man is not to be deemed to have taken up his fixed habitation in India, merely by reason of his residing "there" (i.e. in India) in "the Civil, Military, Naval or Air-borne Service of Government, or in the exercise of any profession or calling".
The main paragraph of the section thus deals with a wide area of acquisition of domicile by choice. A narrow area of the subject is dealt with by the Explanation. The acquisition of domicile of choice by service personnel has, in the past, presented many vexatious problems in the field of law in England. At the beginning of the nineteenth century, the view has obtained that the servants of the East India Company could acquire a domicile of choice in India through residence there. The doctrine was defined by Leach V.C. in the following terms:-1-2
"A residence in India for the purpose of following profession there in the service of the East India Company creates a new domicile".
1. Munrow v. Douglas, (1820) 3 Mad 379.
2. See Note Domicile of Serviceman, (1950) 228 Law Times 4.
5.35. Developments in England as to servicemen.-
But this doctrine, which came to be known as that of "Anglo-India" domicile, was found to be anomalous, and English courts began to be unwilling to recognise the capacity of a British soldier to acquire a domicile of choice. Thus, in 1884, Cotton, L.J. held1 "a soldier or sailor in the service of a sovereign retains the domicile which he had on entering the service, wherever he may be stationed".
The doctrine of "Anglo-Indian domicile" was finally disapproved in 1930 in England.2
However, in 19493, it was first recognised in England that a serviceman could acquire a domicile of choice in the country where he was stationed. The matter was elaborated in 1957, in a case7 which related to proof of acquisition of domicile of choice in the country where a soldier is stationed.
1. Cunningham: (Ex parte), (1884) 13 QBD 418, (See after para. 5.39, infra).
2. Peal v. Peal, (1930) 143 Law Times Reports 768.
3. Douglas v. Douglas, (1949) Probate 363.
4. Cruickshanks v. Cruickshanks, (1957) 1 All ER 889.
5.36. Later case.-
The position was further clarified in a later case.1 This was an action of divorce on the ground of desertion at the instance of an American serviceman whose domicile of origin was in the United States. His marriage took place in England in 1950, and the parties lived in Durham until 1951 when the plaintiff was posted abroad. After service in Korea, the petitioner was posted to France and, in 1957, he visited England with the intention of making his permanent home in England.
He obtained a room in Miteham (England) and kept his belongings there. It was held that the petitioner had in 1957 formed an intention to remain in England and that by his residing in England while on leave, the qualification of (present) residence was satisfied. He had, therefore, acquired an English domicile by choice. Since a serviceman could normally acquire a domicile of choice in the country where he was serving, a fortiori, he can acquire such a domicile at the place where he was on leave.
1. Stone v. Stone, (1959) 1 All ER 194.
5.37. Section 10-Verbal change in the main paragraph.-
We first turn to certain drafting improvements required in the main paragraph of section 10.
The expression used in section 10 is "man". This is a departure from the expression "person" used in most of the other sections in this Chapter. We see no reason why the wording should differ. Of course, under the General Clauses Act1, words in the masculine gender include females, and this rule would apply to section 10 also. However, it is better to introduce uniformity in the matter of drafting. Accordingly, we recommend that section 10 should be revised by substituting "person" for "man", with consequential changes2.
In view of the above reasoning, the main paragraph of section 10 should be revised as under:-
"A person acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin."
1. Section 13, General Clauses Act, 1897.
2. As to the Explanation to section 10, see infra (Para. 5.39).
5.38. Explanation to section 10.-
To revert to the Explanation to section 10, we may state that the Explanation, though seemingly inconsistent with some of the modern trends, is not really so, if due regard be had to the word "merely."
However, it may be added, by way of clarification, that if a person, having gone to another country for the purpose of service etc. intends to remain there, he may acquire a domicile in that country1.
1. Compare section 10, illustration (ii).
5.39. Explanation incomplete.-
Also, we find the Explanation to section 10 incomplete in two respects. First, it leaves out the case of private service and, secondly, it does not cover service elsewhere than in India. The reason for this would appear to be mainly historical. The Explanation was taken word by word from an English case1 (except for the later additions regarding air force etc.).
It was laid down in the English case that a man is not to be considered as having taken up his fixed habitation in British India, "merely by reason of his residing there in His Majesty's Civil or Military Service, or in the exercise of any profession or calling." At the present day, there is no need so to confine the Explanation. The Explanation to section 10 should therefore be suitably widened-(i) to cover private service, and (ii) to embrace all countries (and not merely India).
1. Macricght (in re:), 30 Ch Div 165 (See also para. 5.35 supra).
5.40. Provision in Quebec.-
In this connection, we may refer1 to the very simple provision in the Quebec Civil Code on the subject which declares that2-
"A person appointed to fill a temporary or revocable office, retains his former domicile, unless he manifests a contrary intention."
Although the word "temporary" is used in the Quebec provision cited above, it does not3 mean that a person appointed for life acquires a domicile of choice where he is appointed.
1. Castel Private International Law, 1960, p. 60 and footnote 41.
2. Article 82, Quebec Civil Code.
3. Castel Private International Law, (1960), p. 60.
5.41. Recommendation to revise the Explanation to section 10.-
In view of what is stated above, we recommend that the Explanation to section 10 should be revised as follows:-
"Explanation.-A person is not deemed to have taken up his fixed habitation in India or in any other country merely by reason of his residing there in service of any Government, authority or person or in the exercise of any profession or calling, but i f a person, having gone to another country for the purpose of service or the exercise of any profession or calling intends to remain there, he may acquire a domicile in that country."1
1. Compare section 10, illustration (ii).
5.42. Section 10, Illustrations-Recommendations.-
Certain verbal changes are also needed in the illustrations to section 10. In illustration (i), the expression "as a barrister" should be replaced by the words "as an Advocate", for obvious reasons.
Illustrations (vi) and (vii) to the section relate to the case of a person whose domicile is in the French Settlement of Chandemagore. These two illustrations are now obsolete, and should be omitted.
We, therefore, recommend that illustration (i) to section 10, should be amended as indicated above, and illustrations (vi) and (vii) should be deleted.