Report No. 65
II. Domicile-The General Concept
Coming to the specific heads of recognition, we may begin with domicile. According to traditional English law, recognition of a divorce granted by a foreign court was limited to cases where both the parties were domiciled in the foreign country. Certain modifications or qualifications of this rigid doctrine found their place later. But, we shall discuss these at the proper place1.
1. See Chapter 7, infra.
2.5A. Derivation of the word.-
The word in Latin is domicillium, which is derived from the word domus-meaning home. The exact legal definition of this word has caused jurists a considerable difficulty, and there is no one definition which had been unanimously accepted. Broadly speaking, domicile connotes the place where a person intends to make his permanent home. Domicile is "an idea of law", as Lord Westbury said1. It connotes different ideas in different legal systems. Domicile cannot be a precise concept. Excessive emphasis on animus (intention) as a constituent of "domicile", has led to certain problems, as will be seen later. In India, there are detailed provisions on the subject of domicile in the Indian Succession Act,2 but their scope and applicability is limited.3 The concept of domicile is mentioned in Afticle' 5 of the Constitution of India, but not defined.
1. Bell v. Kennedy, (1868) Law Reports 1 Sc&Div 307 (320).
2. Sections 5 to 20, Indian Succession Act, 1925.
3. Cf. Ratanshaw v. Bananji, AIR 1938 Born 238.
2.6. Rules as to domicile.-
Every individual has a domicile of origin, which can be lost by the acquisition of a domicile of choice. A domicile of choice is more easy to shed than the domicile of origin. In general, according to English law, the domicile of origin is revived when a domicile of choice is terminated and another doinicile of choice is not yet acquired. Again, according to the traditional rules of English common law, the domicile of a wife generally follows that of the husband-a rule which has now been abrogated in England by statute.1
1. Section 1, Domicile and Matrimonial Proceedings Act, 1973 (English).
2.7. Rules as to domicile.-
One's domicile is fixed by the law. If one be a legally competent adult, one may establish a home which the law will say is one's domicile. This is called a domicile of choice1 but it is a matter of free "choice" on the individual's part only because he has complied with the law's requirements for acquisition of a new domicile. If he has two homes, the law determines which of them is his domicile. If he has no home, the law designates a particular place as his domicile regardless of his choice in the matter. At the moment he is born, the law assigns him a domicile, called his domicile of origin. Minors, married women and persons deemed legally incompetent are, by law, each assigned a domicile which may, in turn, be changed by facts outside the individual's control.
1. Restatement (second) of Conflict of Laws (proposed Official Draft, 1967), section 13.
2.8. Variation in rules.-
The concept of domicile is, thus, one of a legal relation between a person and a place, created by the law and not by the persons. In other words, the factors of a person's life constitute domicile because the law so says. The law prescribes the constituents of domicile. If this is true, it must be expected that the exact requisites of domicile, i.e., its definition, may vary slightly according to the purposes for which the term is used. This variation may appear not only from State to State, but even in the same State. Since domicile is a "tool" concept, it will be fitted to the job for which a tool is needed.1 It is conceivable that courts which purport to adhere to the idea of singleness of domicile might nevertheless find a person's domicile to be at one place for one purpose and at another place for another purpose. And, of course, different courts may find one's domicile to be at different places.
1. See Robes v. Kennedy, 219 F Supp 892 (D.D.C. 1963).