Report No. 110

XII. Marriage

5.62. Section 15.-

This takes us to section 15. Section 15 provides that by marriage a woman acquires the domicile of her husband, if she had not the same domicile before. How far the section should be retained in its present form depends on the view to be taken on section 16, therefore, we proceed to consider1.

1. See discussion as to section 16, infra.

5.63. Section 16-Wife's domicile.-

Section 16, in its main paragraph, provides that the wife's domicile during her marriage follows the domicile of her husband. The Exception to the section is in these terms:

"Exception: The wife's domicile no longer follows that of her husband if they are separated by the sentence of a competent court or if the husband is undergoing a sentence of transportation."

5.64. Query as to section 16-Exception.-

Let us first dispose of a possible query arising out of the last ten words of the Exception. The last ten words raise the question if a sentence of transportation would, in itself, change the (husband's) domicile. Now this may not be always the case, at least if the country of transportation is the same political unit-or "legal district"- as the country from which the husband is transported. However, there is a sense in which this part of the Exception may be useful.

If, the husband, after undergoing transportation in X country, settles down in country Y, the wife should not necessarily be burdened with the domicile of country Y. This would be a result flowing from the Exception. The assumption seems to be that a sentence of transportation would snap the emotional ties between the parties and that the possibility of the wife resuming her cohabitation with the husband on the latter's return from transportation would be very faint.

5.65. Unity of spouses.-

We may now deal with certain other points requiring consideration in connection with the section. The first point arises from the main paragraph, which is based on the doctrine of unity of the spouses and makes the wife's domicile dependent on that of the husband. A strict application of the doctrine of unity of the spouses as to domicile may at times, result in injustice to the wife.

5.66. Common law rule.-

The common law rule is that a married woman's domicile is the same as that of her husband and that, if his domicile changes, her domicile changes with it, whether she likes it or not.1 Lord Denning M.R. has described the rule as "the last barbarous relic of a wife's servitude."2

1. See e.g. Lord Advocate v. Jaffrey, (1921) 1 AC 146 (HL); Attorney General for Alberta v. Cook, 1926 AC 444 (PC); De Renevie v. De Renevie, 1948 P 100 (CA).

2. Gray v. Formosa, 1963 Probate 259 (267) (CA).

5.67. In England, the view that domicile ought to be the sole ground for jurisdiction in divorce seems to have been first advanced by Sir Cresswell in 19631, but has been considerably modified by statute The Law Commission of India in its Report on the Recognition of Foreign divorces has recommended a modification of this rule2. However, we are not, at present, concerned with domicile in the context of jurisdiction in divorce. Our present concern is with the subject of domicile as relevant to the law of succession.

1. Forester v. Forester, (1863) 9 TLR 148 (149). See 'Jurisdiction of the English Divorce Court', (1951) 212 LT 197 (198).

2. Law Commission of India, 65th Report, Recognition of Foreign Divorces cases, para. 15.5, Appendix I, clause 13. (Three alternative drafts).

5.68. Criticism of present law.-

The doctrine that the domicile of the wife is that of the husband is founded on the duty of the wife to live with the husband1. This was the rule of the common law. To the extent that a married woman is under a disability in the matter of domicile, it is artificial.

1. Gray v. Formosa, (1963) Probate 259 (267).

Lord Denning's criticism of this rule as "the last barbarous relic of a wife's servitude" has, by now, become famous. In fact, the law on the subject has been substantially altered in England1 and in certain other western countries.2 The current English statutory proviSion (which came into force on the 1st January, 1974, reads-

"Abolition of wife's dependent domicile

1. (1) Subject to sub-section (2) below, the domicile of a married woman as at any time after the coming into force of this section3 shall, instead of being the same as her husband's by virtue only of marriage, be ascertained by reference to the same factors as in the case of any other individual capable of having an independent domicile.

(2) Where immediately before this section came into force a woman was married and then had her husband's domicile by dependence, she is to be treated as retaining that domicile (as a domicile of choice, if it is not also her domicile of origin) unless and until it is changed by acquisition or revival of another domicile either on or after the coming into force of this section.

(3) This section extends to England and Wales, Scotland and Northern Ireland."

This section abolishes the rule of unity of the spouses for the purposes of domicile and provides for a married woman's domicile to be ascertained independently of her husband. However, a woman already married on January 1, 1974, will retain her existing domicile (but as one of origin or choice, not of dependence) unless and until her actions and intentions are such as to change it.

1. Section 1, Domicile and Matrimonial Proceedings Act, 1973 (c. 45).

2. E.g. (a) New Zealand see para. 5.62, supra.

(b) U.S.A.

3. 1st January, 1974.

5.69. Criticism of rule of unity of spouses.-

The rule of unity of spouses1 in this context has been universally condemned. Simon P. called it a 'completely outmoded legal concept2. In 1952, the Private International Law Committee in England, in its first report, recommended a very limited change, viz. that a married woman separated from her husband by order of a competent court should be treated as a single woman. In 1956, the Morton Commission (Royal Commission on Marriage and Divorce) made a slightly different proposal, namely, that for the purposes of divorce jurisdiction a married women should be entitled to claim a separate domicile3. The recommendation of the English Law Commission was to similar effect.

1. Para. 5.57, supra.

2. Adams v. Adams, (1971) Probate 188 (216).

3. Royal Commission on Marriage and Divorce, Report, (1956) Cmnd 9768, para. 825 and Appendix IV, para. 6.

5.70. But the English Act of 1973 goes further and allows a married woman to acquire a separate domicile as any independent person can. The Act is thus in accordance with the spirit of sex equality, embodied in Article 16(1) of the Universal Declaration of Human Rights1, which reads:-

"Article 16. (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."

1. Article 16, Universal Declaration of Human Rights.

5.71. Anomaly of old rule.-

It has been realised that by virtue of the common law rule, it may happen that a woman becomes "domiciled" in a country which she has never seen, and to the courts of which she must resort in matters affecting her status as a married woman.

5.72. Law in New Zealand.-

In New Zealand, section 5(1) of the (New Zealand) Domicile Act, 1976, provides as follows1:-

"5. (1) Every married person is capable of having an independent domicile; and the rule of law whereby upon marriage a woman acquires her husband's domicile and is thereafter during the subsistence of the marriage incapable of having any other domicile is hereby abolished.

(2) This section applies to the parties to every marriage, wherever and pursuant to whatever law solemnised, and wherever the domicile of the parties at the time of the marriage."

5.73. U.S.A.-

In the U.S.A. the common law did not at first, recognise the separate domicile of the married woman. "Although the wife may be residing in another place, the domicile of the husband is her domicile2." Today, how ever, in the United States3 the wife may acquire a separate domicile.

1. Section 5(1) (New Zealand) Domicile Act, 1976, quoted by P.R.H. Webb, "The Domicile Act, 1976", (20 September 1977) NZLJ 374, 375.

2. Anderson v. Watt, (1891) 138 US 694 (706).

3. Weintraub Commentary on the Conflict of Law, (1971) p. 13, referred to in Peter Hay Introduction of United States Law, (1976), p. 119, footnote 291.

5.74. Recommendation to amend section 16, main paragraph.-

Having regard to current social notions, the need for reform of the law relating to domicile of the wife in the Indian Succession Act cannot be denied. After careful consideration, we have come to the conclusion that the law on the subject should be reformed and that for that purpose in place of the main paragraph of section 16, the following sub-sections should be substituted:

"16. (1) For the purposes of this Act, and subject to the provisions of sub-section (2), any rule of law whereby a woman on her marriage acquires her husband's domicile shall not be taken into account after the commencement of the Indian Succession (Amendment) Act.

(2) Where, immediately before the commencement of the Indian Succession (Amendment) Act., a woman has married and then had her husband's domicile by dependence, she shall be treated as retaining that domicile (as a domicile of choice, if it is not also her domicile of origin) unless and until it is changed by acquisition or revival of another domicile either on or after the commencement of the said Act."1

1. Compare Law Commission of India, 65th Report (Recognition of Foreign Divorces), Chapter 15 and Appendix 1.

5.74A. A comment considered.-

We may note that a comment1 forwarded by the Catholic Bishops Conference of India agrees that there could be circumstances where it is obviously desirable that the wife's domicile should be determined by rules other than the (present) rigid rule that her domicile follows that of her husband's.

1. Catholic Bishops Conference of India, letter dated 3rd October, 1984.

5.75. Recommendation as to the Exception to section 16.-

The amendment recommended1 above would render the Exception to section 16 unnecessary. But if the section is not amended as recommended above, it will be necessary to deal with one verbal point which arises in connection with the Exception. The Exception contains words referring to the "sentence of a competent court", which are not appropriate. This part of the Exception should, having regard to current usage, really refer to a decree of judicial separation.

Further, there is a reference in the Exception to "transportation" which, is now inappropriate. India has abolished transportation as a punishment. A few foreign countries still have the punishment of "exile". To cover these rare cases, this part of the Exception should be suitably re-worded. We, therefore, recommend that (if the main paragraph of section 16 is to be retained in the present form), the Exception should be revised, somewhat on the following lines:-

"Exception-The wife's domicile no longer follows that of her husband if they are separated by a decree of judicial separation or if the husband is undergoing a sentence analogous to transportation".

1. Para. 5.74, supra.