Report No. 65
III. Habitual Residence
14.9. Habitual residence as a ground of recognition.-
In view of the drawbacks of domicile to which we have referred, it is desirable to consider the addition of other tests. The first ground of recognition to be newly added, to which we address ourselves, is that of habitual residence. Though the concept of residence is not known to the common law in this field, it is not unfamiliar to Indian legislation. Before certain judicial decisions1 (commencing with the year 1921) changed the position, residence was treated as a basis for the exercise of jurisdiction under the Indian Divorce Act, 1869, section 2. It is believed that the concept of "habitual residence" strips the concept of "domicile" of technicalities and concentrates on the duration of the residence. In particular, it eliminates inquiries as to the mental element.
1. See Keyes v. Keyes, supra.
14.10. Definition of "habitual residence" not necessary.-
Since the question whether residence is habitual will be a question depending on the facts of each case, a definition of "habitual residence" would not be necessary. The expression "habitual residence" does not, of course, necessarily mean the last conjugal residence in the country concerned, though, in many cases, the two might coincide.
14.11. Habitual residence of either spouse.-
A more difficult question-though a question of detail-arises where the habitual residence of the respondent and the habitual residence of the petitioner differ. What should be the test adopted in this regard? Habitual residence of the respondent creates no problems, because, if the country is one where the respondent was habitually residing, in most cases recognition of a decree of a court of that country would not cause any injustice to the respondent. However, the situation where only the petitioner was habitually resident in the foreign country, is a difficult one. It is sometimes believed that such a test of jurisdiction-a test connected with the petitioner's residence-might favour what is known as-"forum-shopping", that is to say, the petitioner going from one place to another and taking up residence in a country mainly in order to select a forum favourable to him.
14.12. Article 2 of the Convention.-
It appears that at the Hague Conference on private international law also, there was some reluctance to admit habitual residence of the petitioner as a ground of jurisdiction. But the delegates of the Scandinavian countries-Denmark, Finland and Norway-insisted upon the inclusion of a forum based on the habitual residence of the petitioner. The conference ultimately admitted this as a ground of jurisdiction, though with certain safeguards-briefly, at least one year's residence of the petitioner, the fact that the spouses last habitually resided together in the country, and the fact that the petitioner who also a national of that State. The precise provision in the Convention1 is elaborate. Article 2 is as follows:
1. Article 2 of the Hague International Convention.
Such divorces and legal separations shall be recognised in all other Contracting States, subject to the remaining terms of this Convention, if at the date of the institution of the proceedings in the State of the divorce or legal separation (hereinafter called 'the State of origin')-
(1) the respondent had his habitual residence there; or
(2) the petitioner had his habitual residence there and one of the following further conditions was fulfilled:
(a) such habitual residence had continued for not less than one year immediately prior to the institution of proceedings;
(b) the spouses last habitually resided there together; or
(3) both spouses were nationals of that State; or
(4) the petitioner was a national of that State and one of the following further conditions was fulfilled:
(a) the petitioner had his habitual residence there; or
(b) he had habitually resided there for a continuous period of one year falling, at least in part, within the two years preceding the institution of the proceedings; or
(5) the petitioner for divorce was a national of that State and both the following further conditions were fulfilled:
(a) the petitioner was present in that State at the date of institution of the proceedings; and
(b) the spouses last habitually resided together in a State whose law, at the date of institution of the proceedings, did not provide for divorce."
We shall discuss the question of either spouse later.