Report No. 224

II. Domicile Vs. Residence

2.1 Domicile of a person is his permanent home. No person can be without a domicile and no person may have more than one operative domicile. National boundaries do not constitute a hindrance in one's choice of domicile. This implies that a person may be national of one country, but his domicile may be another country.

Domicile denotes the connection of a person with a territorial system of law. The importance of domicile lies in the fact that a person's family matters, like marriage and divorce, are generally determined by the law of the place of his domicile, besides his religion. The domicile of a married woman is the same as her husband's by virtue of marriage.

2.2 There are two main classes of domicile: domicile of origin and domicile of choice. Domicile of origin is communicated by operation of law to each person at birth. Domicile of choice is acquired by a person of full age in substitution for that which he at present possesses. There are two requisites for acquisition of a fresh domicile: residence and intention.

It must be proved that the person in question established his residence in a certain country with the intention of remaining there permanently. These two elements of residence and intention must concur, but this is not to say that there need be unity of time in their concurrence. The intention may either precede or succeed the establishment of the residence.1

2.3 Domicile generally constitutes the basis of jurisdiction of courts for entertaining petitions for divorce. Although the matrimonial law in India differs from community to community, the jurisdictional rules differ only slightly.2 The time at which domicile is to be determined is the time when proceedings are commenced.3

In England, the Domicile and Matrimonial Proceedings Act 1973 changed the position of the jurisdictional rule in regard to petitions for divorce and now the English courts have jurisdiction to entertain a petition for divorce if either of the parties to the marriage is domiciled in England on the date when proceedings are commenced, as now after 1st January 1974 a married woman can have her own separate domicile.

The said Act not only provides for abolition of wife's dependent domicile, but also adopts 'habitual residence' as the second basis of jurisdiction: if either party to the marriage was habitually resident in England throughout the period of one year ending on the date when the proceedings are commenced, the English courts have jurisdiction to entertain a petition for divorce.

2.4 In India, although there has not been enacted any law for abolition of wife's dependent domicile, the jurisdictional rule in regard to petitions for divorce (being linked with domicile of the parties) has been relaxed in various ways in certain matrimonial legislations. For example, under the Hindu Marriage Act 1955 and the Special Marriage Act 1954, a petition for divorce may be filed by a wife at the place where she is residing on the date of the presentation of the petition,videthe Marriage Laws (Amendment) Act 2003.

Sub-section (2) of section 31 of the Special Marriage Act 1954 even before the said 2003 Act provided that a petition for divorce by a wife could be filed here if she had been ordinarily resident in India for a period of three years immediately preceding the presentation of the petition irrespective of the husband's residence being outside.

2.5 The above amendment brought about by the Marriage Laws (Amendment) Act 2003 was prompted by the recommendations of the Law Commission of India4 and the National Commission for Women. The Law Commission had expressed the view that such an amendment would give a wife, deserted or thrown out, the choice of court, including where she is residing, to file a petition, relieving her of unbearable burden of expense and inconvenience as well as advancing the cause of gender justice.

1. Cheshire and North's Private International Law, 13th edition, Butterworths, London (1999), p. 137

2. Paras Diwan, Private International Law, 4th edition, Deep & Deep Publications, New Delhi (1998), p. 284

3. Leon v. Leon, [1966] 3 All E R 820

4. 178th Report on Recommendations for amending Various Enactments, both Civil and Criminal (2001)

2.6 Thus, her residence may well constitute the basis of jurisdiction for a petition for divorce by a wife irrespective of her domicile.

2.7 Residence means the place where one actually lives, as distinguished from a domicile. Residence must be bona fide residence.1 A Full Bench of the Kerala High Court in T.J. Poonen v. Rathi Varghese, AIR 1967 Ker 1 (FB), after considering various decisions gave the following propositions:

(1) To constitute 'residence' it is not necessary that the party or parties must have his or their own house.

(2) To constitute 'residence' the stay need not be permanent; it can be temporary, so long as there is animus manendi or an intention to stay for an indefinite period.

(3) 'Residence' will not take in a casual stay in, or flying visit to a particular place; a mere casual residence in a place for a temporary purpose, with no intention of remaining, is not covered by the word 'reside'.

(4) 'Residence' connotes something more than stay; it implies some intention to remain at a place, and not merely to pay it a casual visit.

(5) As emphasized by the Supreme Court, by staying in a particular place, in order to constitute 'residence', the intention must be to make it his or their abode or residence, either permanent or temporary.

(6) The expression 'last resided' also means the place where the person had his last abode or residence, either permanent or temporary.

(7) Where there has been residence together of a more permanent character, and a casual or brief residence together, Courts have taken the view that it is only the former that can be considered as 'residence together' for determining the jurisdiction.

(8) The question as to whether a particular person has chosen to make a particular place his abode, is to be gathered from the particular circumstances of each case.

1. Sumathi Ammal v. D. Paul, AIR 1936 Madras 324 (FB).

2.8 The jurisdiction of the courts in India to exercise authority under the Divorce Act 1869 was varied by an amending Act of 1926. Prior to the amendment of the Divorce Act 1869 in the year 1926 which came into force from 25th March 1926, the jurisdiction conferred on the courts in India under the Divorce Act 1869 to make decrees of dissolution of marriage on the basis of residence was not restricted to the cases of persons domiciled in India.1 A court could pass a decree of divorce if the parties to the action resided within the jurisdiction of the court at the time of the presentation of the petition.

In other words, residential test of the parties was enough and domicile was not essential to confer jurisdiction on the courts in India under this Act. Two conditions were required to be satisfied prior to the amendment of 1926 for the purpose of exercising jurisdiction by the courts in India at the time of presenting the petition in the court. But in the case of Keyes v. Keyes, (1921) P. 204, it was held that the court had no jurisdiction where the respondent had foreign domicile. In Isharani's case1 the test laid down in Keyes' case2 was not followed.

But accepting the test of the latter case the Indian Divorce Act 1869 was amended in 1926. By the amendment the courts in India are not empowered to pass any decree for dissolution of marriage except in cases where the parties to the marriage are domiciled in India professing Christian faith at the time of presenting the petition. The domicile of the wife is the domicile of the husband. It is in accord with the rule of Private International Law.3

1. Isharani Nirupoma Devi v. Victor Nitendra Narain, AIR 1926 Cal 871.

2. (1921) P. 204.

3. H.K. Sahary, Law of Marriage and Divorce, 5th Edn., Eastern Law House, Kolkata (2007), pp. 368-369.