Report No. 110
XV. Insane Persons
5.80. Section 18-Analysis.- Section 18 provides as follows:-
"An insane person cannot acquire a new domicile in any other way than by his domicile following the domicile of another person."
The words "by his domicile following the domicile of another person" in the section could be thus illustrated-
(a) If the insane person is a minor1, his domicile follows that of his parent from whom he derived his domicile of origin.
(b) If the insane person is a married woman, her domicile follows that of her husband, under the present law2.
(c) If the insane person is a major unmarried male, his domicile cannot be changed by his own act. His domicile remains what it was at the commencement of his insanity3.
A lunatic may not be able to acquire a domicile of choice, because of his inability to form the necessary animus.
1. Section 14.
2. Sections 15 and 16.
3. Urquhart v. Butterfield, 37 Ch D 357; Par v. Crispin, 1 P&D 611, cited in Paruck Indian Succession Act, (1977), p. 38.
5.81. Domicile unchangeable by act of person having custody.-
In England, it seems1, the domicile of the instance person cannot be changed even by the act of the person having care or custody of the person. Is India, section 18 does not deal specifically with this situation; apparently, the English rule on the subject would be followed.
1. Cheshire Private International Law, (1970), p. 179.
5.82. Need for change in present rule.-
However, this position does not appear to be satisfactory and is often likely to lead to anomalies in practice. In our view, the better course would be to provide that the domicile of an insane person is the same as that of the person in whose care and protection he is for the time being. Of course, the provision to be so inserted will be subject to the other sections of the Act, e.g. the special provisions for minors. But barring such special cases, it is the domicile of the person in whose care and protection the insane person is for the time being, that should govern the domicile of the insane person.
5.83. Recommendation to revise section 18.-
We, therefore, recommend that section 18 should be revised as follows:-
"18. The domicile of an insane person follows that of the person in whose care and protection he is for the time being."
It is not considered appropriate, in this case, to make any exception for cases where the insane person is married.1
1. Contrast section 14, Exception.