Report No. 65
II. Domicile-defects
14.3. Drawbacks in the concept of domicile.-
Now, so far as the concept of domicile is concerned, though, by and large, its outlines in theory are clear, its practical application leads to certain, difficulties, the most important of which is the difficulty of determining that part of the concept which represents the mental element. Broadly speaking, domicile, as understood according to the traditional concepts of the common law world, comprises two elements, which can be conveniently described as the physical element and the mental element. Case-law on the subject is legion; but, for the purposes of the present analysis, it is sufficient to refer to the observations of Lord Wensleydale1:
"There are several definitions of domicile which appear to me pretty nearly to approach correctness. One very good definition is this: habitation in a place with the intention of remaining there for ever, unless some circumstances should occur to alter this intention."
The combination of fact and intention, which is required to constitute domicile,' is also indicated lucidly in the observations of Russell. J.2-
"The domicile flows from the combination of fact and intention, the fact of residence and the intention of remaining for an unlimited time. The intention required is not an intention specifically directed to a change of domicile, but an intention of residing in a country for an unlimited time"
1. Whicker v. Hume, (1858) 7 House of Lords Cases 124 (164).
2. Annesley (in re:), Davidson v. Annesley, 1926 Ch 692.
14.4. Mental element.-
The physical element in domicile may not present problems of magnitude. The mental element does. It may be easy to determine whether a person is or is not residing in a particular place at the time when the proceedings for divorce were instituted. But it is not so easy to determine what was intentions were at that particular moment. A person may not always have a very definite intention as to what country he proposes to make his permanent home. The inference drawn by the court may do injustice to the person who may not have such intention.
The mere fact of a man residing in a place different from that in which he has been previously domiciled (domicile of origin), even though his residence there may be long and continuous, does not, of necessity, show that he has elected that place as his permanent and abiding home. Therefore, though the concept of domicile as a test of recognition of a foreign decree is simple in formulation, it is difficult in its application.
14.5. Rigidity of the English concept.-
Another difficulty created by the concept of domicile is the fact that it is a very rigid one. In Arnold v. Arnold, (1957) 1 All ER 570 (572) it was observed-
"The general rule of jurisdiction in divorce in England is that English domicile only is the test and that has to be the domicile of the husband. Pausing there, English conception of domicile is the most rigid in the world. It must be residence with the intention of permanent settlement in that place."
It does not, for example, tally with the American concept of domicile, which, in this context is, to some extent, more liberal. The American concept of domicile is, in practice, if not in theory, different from the English one. The English concept emphasises the subjective element. While judicial pronouncements and other current formulations of the requisite intent in the U.S.A., do not look very different from those employed in English law, yet, in actual practice, American courts in general, have not taken the subjective test as literally as their British counterparts.
Remote possibilities, or even rather strong probabilities, of a future return to the country of the previous domicile, or other removal from the actual place of abode would, by the yardstick applied by English courts, probably prevent the acquisition of a domicile of choice. But these have usually been disregarded by American courts. This has been done even where the acquisition of a new domicile involved abandonment of a domicile of origin. Again, in the U.S.A., a change of domicile is said to depend not so much upon the intention to remain indefinitely in the new place, as upon a lack of any present intention to establish a home elsewhere. Under the Restatement prepared by the American Law Institute, for example, it is enough if the person intends to mate a place as home "for the time at least."1
1. Restatement (Conflict of Laws), section 15(2)(b), section 18.
14.6. Domicile of wife.-
Another drawback of the English concept is that apart from statutory modification, the domicile of the wife follows that of the husband in general, so long as the marriage is subsisting. It is not only settled that a wife on her marriage acquire by operation of law the domicile of her husband, which she retains so long as the marriage subsists1-2 but it is also well-settled that she retains this domicile even if she is deserted by her husband3, and even though she may have obtained a decree of judicial separation4.
This aspect of the concept of domicile naturally causes injustice when the husband deserts the wife, with the result that while the de facto residence of the wife is different from that of the husband, the pre-existing domicile, which arose by reason of the marriage, confers jurisdiction on, and only on, the courts of the foreign country where, before the desertion, the husband was domiciled. Until the marriage comes to an end, this position survives where the common law applies.
1. Alberta v. Cook, 1926 AC 444 (PC).
2. This is the common law rule.
3. Yelberton v. Yelberton, (1859) 1 Sw and Tr 574.
4. See discussion in Garthwaite v. Garthwaite, (1964) 2 All ER 233 (236) (Court of Appeal) (Wilmer, L.J.).
14.7. Difficulties of domicile summed up.-
To sum up what has been stated above, the concept of domicile suffers from the following principal drawbacks, namely,-
(i) difficulties of application1;
(ii) rigidity of content2; and
(iii) injustice to the wife3 in certain circumstances.
However, we may note that many countries adopt the test of domicile as a basis for exercising jurisdiction in divorce.
1. Para. 14.4, supra.
2. Para. 14.5, supra.
3. Para. 14.6, supra.
14.8. Domicile.-
In relation to those countries, it will obviously be desirable to recognise the decrees of divorce or legal separation passed in these countries on that basis. Such a provision is contained1 in the English Act of 1971 also, and its utility, even after insertion of the proposed new tests of recognition, lies in this, that Indian courts, while considering the question of recognition, will not be called upon to examine and investigate questions of fact relating to habitual residence or nationality-the proposed new tests. We therefore recommend that the present position in this regard should be preserved.
1. Section 3(2), English Act of 1971.
14.8A. Legislative device.-
The legislative device to be adopted in this connection should, however, be slightly different from that adopted in the English Act. The English Act includes domicile under habitual residence, in section 3(2). We would prefer to mention it separately, and thus adopt a more direct way of dealing with the matter.
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