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Report No. 65

Chapter 15

Domicile and Nationality of the wife

I. Domicile

15.1. Dependent domicile of wife.-

Two questions concerning married women may now be dealt with-domicile and nationality. A married woman's domicile follows, in general, that of her husband. This is described as the domicile of dependence. Domicile of dependence as a basis of jurisdiction has attracted much criticism over a long period, particularly in that it may be unfair to a married woman who can have no independent domicile.

15.2. Indian Law.-

It may be noted that so far as domicile is concerned Indian courts have, in general, followed the English rules whenever occasion arose-as for example, in cases under the Indian Divorce Act. The Indian Succession Act1 has a specific provision whereunder the domicile of the wife, in general, follows that of the husband-though, the applicability of this part of the succession Act is limited.2 In this position, if the rule of English law is to be modified, an express provision appears to be desirable.

1. Sections 15 and 16, Indian Succession Act, 1925.

2. Section 4, Indian Succession Act, 1925.

15.3. Criticism of theory of dependent domicile.-

While the advantage of domicile is that it covers people who psychologically "belong" to a country, the theory of dependent domicile of a wife is the main disadvantage. This theory of dependant domicile violates the modern principle of equality of sexes, and has been discarded in many commonwealth countries, such as, Canada,1 Australia2 and New Zealand.3 Abolition of the wife's dependant domicile has been achieved in England by section 1 of the Act4 of 1971, which reads-

"(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 section shall, instead of being the same at 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,"

1. Divorce Act, 1968 (Canada).

2. (Australian) Matrimonial Causes Act, 1963.

3. New Zealand Matrimonial Causes Act, 1963.

4. Section 1, English Act of 1971.

15.4. Some countries still apply the common law rule.

15.5. Recommendation as to wife's domicile.-

In our view, it would be fair to provide that for the purposes of the present proposals, the domicile of the woman should be determined independently of that of the husband. Such a provision is required not only in view of the rule at present applied in India1 but also in view of the fact that some countries still apply the common law rule.2 Such approach would be in conformity with the spirit of the Indian Constitution.

1. Para. 15.2, supra.

2. Para. 15.4, supra.



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