Report No. 110
X. Domicile of Dependence of Minors
5.50. Domicile of dependence.-
The provision so far discussed are mainly concerned with domicile independently acquired by a person. In certain cases, the domicile of a person follows that of another person. One such case is that of a minor. Section 14, in the main paragraph, provides as follows as regards minors:
"14. The domicile of a minor follows the domicile of the parent from whom he derived his domicile of origin".
According to the Exception to the section, the domicile of a minor does not change with that of his parent, if the minor is married or holds any office or employment in the service of Government, or has set up, with the consent of the parent, in any distinct business.
5.51. Children of parents living apart.-
There are certain points arising out of sections 7 and 14, in regard to children whose parents are living apart at the time of the birth of the child, whether or not the parents have been divorced in law. Under section 7, the domicile of origin of every person of legitimate birth is the same as the domicile of the father at the time of birth-leaving aside the very special situation of a posthumous child, which has been dealt with separately.1 Under section 14, the domicile of origin is fixed by the operation of law.
The section gives effect to the primary rule that the domicile of a legitimate child automatically changes with any change that occurs in the domicile of the father.. (There are other situations to which also 14 applies, but they may be kept aside for the present). Thus, in both the cases-the domicile of origin and the domicile of dependence-the domicile of the child is compulsorily linked with that of the father.
1. Para. 5.26, supra.
5.52. Defect of the rule of unity when applied to parties living apart.-
This doctrine of the unity of domicile with the father of the child may not, however, yield a proper rule in certain situations where the parents are living apart at the time of the birth of the child:
(a) The parties to the marriage may be separated with or without a decree of judicial separation, or
(b) The parties to the marriage may be living apart with or without a decree of divorce. In all these cases, if the child has his home with he mother and no home with the father, the present provisions in sections 7 and 14 would not reflect the reality of the situation. To necessarily link the domicile of the child with that of the father is likely to lead to hardship, anomaly and injustice in such cases.
5.53. English Act of 1973.-
In England, the rule has to some extent been altered by the Domicile and Matrimonial Proceedings Act, 19731, stated in brief, the position in England under the Act of 1973 is as follows:-
(i) Where both the parents are alive but are living apart, the domicile of, the child is that of the mother, if the child has his home with her and no home with his father, or if the child has acquired the domicile of his mother in this way and has not, since then, had a home with his father. (Thus, a child having a home with his mother keeps the mother's domicile even though he ceases to live with her even if he had not a home with his father.)2
(ii) A child who has his home with the mother, continues to retain it after the death of the mother, unless and until he has a home with his father.
(iii) These rules apply to legitimate as well as to adopted children.
1. Section 4(2)(a), 4(2)(b), 4(3) and 4(4), Domicile and Matrimonial Proceedings Act, 1973 read with paras. 1(2), 1 (4) and 3 of the First Schedule to the Children Act, 1975 in regard to adopted children.
2. Cheshire and North Private International Law, (1979), p. 180.
5.54. English provision as to children.-
The statutory provision in England as to domicile of a child not living with his father is as follows1:-
"Dependent domicile of child not living with his father.
4. (1) Sub-section (2) of this section shall have effect with respect to the dependent domicile of a child as at any time after the coming into force of this section when his father and mother are alive but living apart.
(2) The child's domicile as at that time shall be that of his mother if-
(a) he then has his home with her and has no home with his father; or
(b) he has at any time had her domicile by virtue of paragraph (a) above and has not since had a home with his father.
(3) As at any time after the coming into force of this section, the domicile of a child whose mother is dead shall be that which she last had before she died if at her death she had her domicile by virtue of sub-section (2) above and he has not since had a home with his father.
(4) Nothing in this section prejudices any existing rule of law as to the cases in which a child's domicile is regarded as being, by dependence, that of his mother."
1. Section 4, Domicile and Matrimonial Proceedings Act, 1973.
5.55. View of Cheshire.-
The view has been expressed1 that these provisions apply only for the determination of the dependent domicile of a child, and do not appear to affect the determination of domicile of his origin. Thus, a child born of parents who are married but living apart at the time of his birth would acquire the fathers domicile as a domicile of origin, but immediately thereafter acquire a domicile of dependence with his mother where his home is2.
1. Cheshire and North Private International Law, (1979), p. 180.
2. Cheshire and North Private International Law, (1979), p. 180.
5.56. Children of divorced parents.-
One question that might arise-and a question that is of practical importance because of the increasing rate of divorce in all countries, including India-is this: what happens to a child whose parents are divorced at the time of birth? In England, the expression 'living apart' would cover the situation1. But in India there is no specific provisions on the point, with the result that sections 7 and 14 would apply to the case.
Now, under section 7, the child would acquire the domicile of the father, even though, in fact, the child is totally separated from the father. With reference to the position in England2, it has been suggested that a child born to parents who have been divorced, takes his mother's domicile at his birth. If the capacity of a father to change the domicile of his infant child is a manifestation of parental authority and responsibility3, then there is no reason why that doctrine should apply where the father has never accepted his responsibility for the child.
1. See supra.
2. Dicey and Morris Conflict of Laws, (1973), p. 93.
3. Compare Re B(S) (an infant), (1967) 3 All ER 629.
5.57. Need for amendment, and recommendation.-
It appears to us that in regard to all these cases, there is need for a change in the present statutory provisions in sections 7 and 14. In framing the revised provision, assistance can, to a large extent, be derived from the English Act1 of 1973.
1. Section 4, Domicile and Matrimonial Proceedings Act, 1973 (C. 45).
5.57A. Section 14-Suggestion regarding domicile of child considered.-
We note that in an article in the Statesman1, a writer (commenting on the Law Commission's Working Paper on the subject) has stated that the commission, while recommending changes regarding the domicile of married women (section 15) and domicile of a posthumous child (sections 7-9), has not recommended that "the domicile of origin of either parent should be that of the child and that if the child is living with the mother, the latter's country of origin should be the child's."
The criticism quoted above from the article seems to imply that in the writer's view, the Law Commission should have so recommended. Analysing the matter, one finds that two ideas are involved in the above criticism
(i) The child's domicile should follow that of either parent.
(ii) The child's domicile, when the child is living with the mother, should follow that of the mother.
It appears that the first of these two points is meant for the generality of cases, while the second is meant for the special case where the child is actually living with the mother.
1. Shahnaz Anklesaria Laws which discriminate against women, (29 June, 1984) Statesman, p. 6
5.57B. Rule providing for two alternatives not practicable.-
As to the first situation, we do not think that a rule of law which is intended to determine, in the first instance, a particular question so as to avoid controversies on the subject can be appropriately framed so as to lead to two alternatives becoming applicable.
If both the alternatives yield the same conclusion in a particular case, the suggested rule is not needed. If both the alternatives yield different results the rule may create confusion. We do not therefore find the suggestion acceptable. The object of rules fixing domicile is to maintain a measure of certainty. That object will be defeated if two alternatives become applicable which would be the case if the domicile of origin of either parent is to become the child's domicile as is the suggestion.
5.57C. Whether present rule violates equality of the sexes.-
It may be argued that the present rule giving predominance to the father is violative of the equality of sexes. But that would not be so, in reality. So long as members of the family are not separated, the child would, in fact, be living with the parents and the present rule would not violate any right of the mother.
5.57D. Child living with separated mother.-
If the members of the family are separated, what should be the position? This brings us to the second point arising out of the suggestion now under consideration, namely, that if the child is living with the mother, then the child's domicile should follow that of the mother. We do not find anything wrong in such an approach. Where a matrimonial court has awarded the custody of the child to the mother, the case for making such a rule is fairly strong. In fact, the amendment which we are recommending1 in section 14 will take care of this and similar situations.
1. Section 14, as proposed to be amended, see para. 5.58.
5.58. Amendment of section 14 recommended.-
In the light of the above discussion, we recommend the insertion in section 14 of the following new sub-sec tions1:-
New sub-sections to be added in section 14-
(2) The domicile of a minor at any time after the commencement of the Indian
Succession [Amendment Act when his father and mother are alive but living apart shall be governed by sub-section (3)].
(3) The minor's domicile as at that time shall be that of his mother if-
(a) he then has his home with her and has no home with his father; or
(b) he has at any time had her domicile by virtue of clause (a) Above and has not since had a home with his father.
(4) As at any time after the coming into force of the Indian Succession (Amendment) Act the domicile of a minor whose mother is dead shall be that which she last had before she dies, if at her death the minor had her domicile by virtue of sub-section (3) and he has not since had a home with his father.
(5) Nothing is sub-section (2) to (4) shall prejudice any existing rule of law as to the cases in which a minor's domicile is regarding as being, by dependence, that of his mother."
1. Present section 14 to be renumbered as section 14(1).
5.59. Recommendation to amend section 14.-
We may also mention that while discussing an earlier section1, we have made a recommendation to amend the Exception to section 14:-
"or if the parent has mala fide changed his domicile".
1. See discussion as to section 7, para. 5.27, supra.
Back
