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CRITICAL ANALYSIS OF DOMICILE OF DEPENDNET PERSON UNDER PRIVATE INTERNATIONAL LAW
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CRITICAL ANALYSIS OF DOMICILE OF DEPENDNET PERSON UNDER PRIVATE
INTERNATIONAL LAW
AUTHORED BY
- DR. SAYALI M CHANDEKAR
(Asst.
Prof. DES, SNFLC Pune)
1. INTRODUCTION
Conflict of
laws refers to private International Law which means branch of Indian law
applied by Indian Courts whenever a dispute before it involves a foreign
element[1].
Foreign element means, a relevant fact or issues has certain geographical or
other connection with a territorial unit, other than the territorial where the
court is dealing with the proceedings.
Foreign elements consist of citizen or domicile in a foreign country and
dispute may be related to status or property which is situated in that country.
Conflict of laws are set of rules for procedural
law which determine the legal system and the law of jurisdiction applying to a
given legal dispute[2].
Domicile i.e., lex domicilli, has a
dominating role in family, matrimonial property law. It also plays role in other areas such
as capacity of persons to make contracts. Domicile is considered to
be one of a significant connecting factor which links people with a particular
legal system. For instance, a married man domiciled in England is under the
jurisdiction of England for purposes of dissolving or annulling his marriage[3].
In personal matters, the lex domicilli is governed by common law
countries. Domicile is also considered as habitual residence, considered to be
based on the principal of Individual Liberty- an individual free to establish
his domicile at any place in the world. There are three forms of domicile such
as - Domicile of Origin (acquired at birth); Domicile of Dependence (domicile
dependent on another); Domicile Of Choice (acquired by independent person
residing in country w/o intention to settle indefinitely, factum, animus).
This paper
will discuss the concept of Dependent domicile under Indian and English
law. The term dependent domicile is
applicable to a person who is incapable of having domicile of choice[4]. The domicile of
dependency is an imposed domicile and it changes only when the person to whom
the dependent is dependent on changes his domicile. Considering the concept of dependent
domicile, researcher will divide this into chapters such as domicile of dependent
person for married woman, minor with the concept of doctrine and acquisition of
domicile. The rules under conflict of laws are applicable when a legal dispute
has a “foreign” element such as a contract agreed to parties in different
countries. There are certain concepts which are important or are regarded as a
determinative factor in the conflict of laws.
2. Conflict of Law
I.
Definition, Meaning and Concept of
Domicile
The concept
of domicile[5] is of the important area of law.
Domicile is a “connecting factor” or link between a person and the legal
system or rules that will apply to him/her in particular contexts like in case
of validity of marriage, succession, adoption, property, taxation, contract,
tort and many more.
This deep-rooted
concept in detailed discussed in old cases such a Whicker v Hume[6] where
it is observed that, domicile is nothing but a permanent home. Where an individual’s
shows his/ her intention to reside permanently or residing at one place since
long continuously. However, there are many reported cases where a person
has lived in a place for 30 or 40 years but still does not have a domicile
there. But this case speaks about the concept of permanent home.
A. Definition-
a. Duhaims law dictionary- permanent residence of a person, a
place to which even if he or she were temporarily absent, they intend to
return.
In law, it is said that a person may have many residents but only one
domicile.
The definition of domicile has
vexed jurists for centuries. In Whicker v Hume, Justice Cranworth described it by way
of an illustration:[7]
"From which you cannot be separated if nothing removes you. When you
depart from them, you are seen as a stranger."
In that same case, Justice Wensleydale offered: "One very good
definition (of domicilli) is habitation in a place with the intention
of remaining there forever, unless some circumstance should occur to alter his
intention."
b. In, Lord v Colvin Case -
Justice Kindersley wrote that- “That place is properly the domicilli of a person in which he has
voluntarily fixed the habitation of himself and his family, not for a mere
special or temporary purpose, but with a present intention of making it his
permanent home, unless and until something occurs to induce him to adopt some
other permanent home"[8].
II. CONCEPT OF DOMICILE IN INDIA- in this contemporary era, the world
is dominated by individual movements which crosses state bordered and are
easily globalized. These movement are not specifically related to any specific
stream but vary across areas such as employment, education, settlement and many
other. When individual leaves his/her own country they carry their domicile. In
some cases, he/she decides to reside permanently or temporary at foreign land
but where possibilities of unexpected problem for legal solutions are also
increased. Like in India, the legal court also handling such cases on regular
basis. It is hard to adopt mechanically the rules of Private International law
evolved by other countries.
While talking about the concept of domicile in India, said concept is
discussed in Art 5 of the Indian Constitution which says that, Citizenship at the commencement of the Constitution. At
the commencement of this Constitution, every person who has his domicile in the
territory of India and—
a. Born
in the territory of India; or
b. Parents
was born in the territory of India; or
c. Resident of the territory of India for not
less than five years immediately preceding such commencement, shall be a
citizen of India.
III. CONCEPT OF DOMICILE IN
ENGLAND
In English law, domicile
is a traditional concept which is discussed in Rule 4-16. The civil
Jurisdiction and Judgment Act 1982 which provide necessary definition but the
resulting concept has little in common save its name with the traditional
concept[9].
Domicile is a concept of permanent home. An individual may be said to
have his home in a country if he resided in it without any intention of at
present removing from it permanently or for an indefinite period. But a person
does not cease to have his home in a country merely because he/she is
temporarily resident elsewhere; and a person who has formed the intention of
leaving a country does not cease to have his/her home in it until he/she acts
according to that intention[10].
3.
DOMICILE
OF ORIGIN
Domicile of origin comes into picture as soon as the child becomes
an independent person by birth. If the child is born in a lawful wedlock,
then the child takes the father’s domicile. The domicile of origin
remains with an individual until another has been acquired[11].
In order to change the domicile of origin, there must be an absolute removal
from their present residence along with an intention to reside in another
place. A mere intention to remove is not sufficient. Such intention
to remove must be brought into effect. On moving to a new place, a person
acquires a domicile of choice and loses domicile of origin. But if such
person returns with an intention to reside in his/her prior residence then s/he
will get back his/her domicile of origin[12].
Further in case of domicile in an illegitimate child’s domicile, the
illegitimate child first has to be legitimized by a statute. Here the
statute legitimizes the unlawful wedlock for recognizing and acknowledging to
the child’s domicile. For this purpose, the parent whose relation is
required to be made legitimate must be domiciled in a state that permits such
an act. If a father is a resident of a state that permits legitimization
by recognition, the fact that the mother and child are domiciled elsewhere will
not affect the act of legitimating. Such a legitimization will be
recognized in every state. However, if the domicile of the father at the
time of the act of recognition is not of the state which implements the act, then
it confers a legitimate status to the child. In this case the father’s
subsequent removal to the latter state will not confer a legitimate status to
the child.
Domicile of origin is a creation of law and in no way can it be
given up totally, for the simple reason that it continues to exist, till the
person has voluntarily given up such domicile along with acquired another
domicile.
4. DOMICILE OF CHOICE
An independent person is free to acquire
domicile in place of his choice. The capacity to acquire such domicile is governed
by the law of existing domicile.
There are two major requirements to achieve
domicile of choice-
i.
A habitual residence in a country, where domicile sought to
be acquired and
ii.
An intention to live in a country of domicile of choice
permanently
A domicile of choice can be acquired only by a person who is not
incapacitated either by age or by unsoundness of mind. There are no formal
steps to be taken for a person who is of full age and capacity to acquire a
domicile of choice.
I.
ENGLAND
At common
law, every person other than dependent person can acquire a domicile of choice of
a place with an intention to reside permanently[13].
Any circumstances which is evidence of a person’s residence, or intention to
reside there permanently, should be taken into consideration to determining
whether he/she has acquired a domicile of choice. To determine whether a person
has the requisite intention to reside permanently the court can regard the
motive which induced him/her to take up such residence, also consider whether
he/she had freely done so, or that such residence was precarious[14].
Hence, for acquiring the domicile of choice two attributes are very important
i.e., Residence and Intention.
II.
INDIA
Indian courts
follow common law rule, the question of determining a person’s domicile is well
brought out in Sakaram Govindan v Laksmi Bharti case, a decision of a
Supreme Court on the question of domiciled in matter related to the succession
to movables of a person born in India, who died in England.
There are few
essentials are required for the acquisition of domicile-
i.
Residence
in the country of domicile of choice, and
ii.
Intention
to choose to live in the country of domicile of choice permanently[15].
The Indian
Succession Act 1925, Section 10 lays say that, “a man can acquires a new
domicile by taking up his fixed habitation in a country which is not that of
his domicile of origin.” In the other words, factum et animus must
concur in this case. If he/she leaves his country of domicile of origin with an
intention to settle in another country, or it may be formed after numerous years
of being a residence just as in the case of a fugitive. But the co-existence of
intention and residence is mandatory so that the domicile of choice can be occurred.
5. DEPENDENT DOMICILE- MARRIED WOMEN
Common Law
rule is that, wives are acquired dependent domicile of their husband and the
dependent persons cannot independently change their domicile of origin; if on
the other hand, the husband changes his domicile of origin, the domicile of
wife usually changes with a change in the domicile of husband. This rule is
also expressed by saying that the husband’s actual and the wife’s legal
domicile are one, irrespective of the wife’s personally residing.
I.
POSITION UNDER INDIAN LAW
The provision
of the Indian Succession Act 1925, which have already been noted, broadly
embody this principle and have been followed in India, even though they do not
apply to the majority of Indian.
The Indian
law does not follow the Indian Succession Act 1925 Sec.15 and 16 incorporate
the general rule: on marriage wife required domicile of husband and during
covertures her domiciled is the domicile of her husband. Then it is led down
that wife can acquire own domicile in following two cases-
a. If the wife is living separate under
a decree of the court or,
b. If the husband undergoing a life
sentence.
Indian court
have been called to dwell upon the matter in the several situations.
In Prem
Pratap v Jagat Pratap[16]
- A German
domiciled woman married a domiciled Indian and set up the matrimonial home in
India. After sometime, the husband left the wife. The wife filed the suit for
maintenance in an Indian Court in the meantime. The main defense of the husband
was that on abandoned of the wife by him, the wife’s pre-marriage domiciled had
reviewed and therefore the Indian court has no jurisdiction to entertain the
petition rejecting. This plea, the Court observed that during covertures the
domiciled of wife remains that of the husband.
Smt.
Allabandi v Union Of India[17], the Allahabad High Court also accepted the
plea of the wife u/s 16 Indian Succession Act 1925 said that during the
subsistence of covertures the domicile of the wife is the domicile of her
husband which is quite clear.
It is very
unfortunate that Indian courts followed the English decisions on the unity of
the domicile of husband and life. The courts of Indian post-independence were
not bound to do so. If any decisions were considered to be so very necessary
that could have easily looked to decisions of other jurisdictions and adopt
accordingly. It is very curious that in order
to follow English precedents, Indian judges ended up ignoring the specific
provision of the Indian Succession Act 1925 which creates some ambiguity is
some cases. They looked to the explanation to S.16 it was possible for them to
reach conclusion. S.16 lays down that, wife’s domicile does not follow
husband’s if wife has been judicially separated, or her husband is undergoing a
sentence of transportation. Indian court could have easily extended this
principle at least to those cases wherein the husband and wife are no longer
living together, or the husband has deserted the wife.
II.
POSITION UNDER ENGLISH LAW
A person’s domicile is the place where s/he has his/her true fixed home
and principal establishment, and to which, whenever s/he is absent, has the
intention of returning. It is not required to have the intention to stay
there permanently. A man and wife are presumed to have the same domicile.
This presumption flows in favor of both. The general rule is that the
wife must adopt the residence of the husband and that she must have a valid
justification to maintain a separate domicile.
6. DOMICILE OF DEPENDNAT PERSON- MINOR CHILD
a. -The domicile of a child ‘under 16’ is quite complicated.
if
i.
legitimate it is that of his/her father
ii.
if he is legitimated, it is that of his father from the time of the
legitimating (such a child will have his mother’s domicile as a domicile
of origin)
iii.
if he is illegitimate
or his father is dead,
it is that of hi smother
iv.
if
he has no parents, his domicile
probably cannot be changed
v.
if he is adopted his domicile is
determined as
vi.
if he were
the legitimate
child of the adoptive parent or parents.
One anomaly which is important to understand is that a mother who
changes her domicile will only change the domicile of a child dependent on
her if what she does furthers the child’s interest. Fathers are not
so constrained.
Everyone at birth receives a
domicile of origin, which is attributable by operation of law. A legitimate
child takes her father's domicile[18]
Indian law is slightly different from English
law. In respect of legitimated child
a) S.7 of Indian Succession Act
provides: “The domicile of origin of every person of legitimate birth, is in
the country in which at the time of his birth the father was domiciled or if he
is posthumus child, in the county in which his father was domiciled at the time
of father’s death.”
b) S.8 of Indian Succession Act
provides: “the domicile of origin of an illegitimate child is in the country in
which at the time of his birth his birth, his mother was domiciled.
c) S.14 of Indian Succession Act
provides: “the domicile of a minor follows the domicile of the parent from whom
he derived his domicile of origin.”
There are two
exceptions in Indian law when the minor does not follow that of his parent-
i.
If
the minor is married
ii.
If
the minor holds any office or employment in the service of Her Majesty or
iii.
If
the minor has set up, with the consent of the parent, any distinct business[19].
7. THE DOMICILE OF LEGITIMATE MINOR CHILDREN
Legitimacy in layman’s language
means the status acquired by a person who is born to parents who are married to
one another at the time of the birth. Legitimation means that a person not born to
married parents ends up acquiring the status of legitimacy as a result of some
act. Adoption involves the extinction of the
parental links between the child and the biological parents and the creation of
similar links between the child and the adoptive parents.
Although there are many areas in which rules of law reflect current
feelings of moral and social policy, few controversies call for the
determination of such factors as directly as does a case involving the legal
status and rights of an illegitimate child. This is particularly true where one
state is called upon to validate the status of an illegitimate who was born or
has been domiciled in another state prior to migration to the forum.
I.
POSITION IN ENGLAND
A child is, or is considered to be, legitimate if he/she is born
anywhere in the world in “lawful wedlock? At common law, the domicile of minor was dependent on, and
changed with the domicile of father[20].
This was not applicable universally and different set of rules applied in case
the father of minor dead, in such cases the domicile of minor is followed by that
of the mother. This is not universal rule at least as far as the domicile of
minor whole father was dead, in this case the widow with several children
domiciled in Scotland, remarried and shifted with her second husband to England
with all children except her a daughter who decided to stay back and continued
to stay in Scotland till she dies. It was held that the widow had refrained
from exercising her power to change the domicile of that particular child who
retained her Scottish domicile[21].
II.
POSITION IN INDIA
In India, “Legitimacy? is a status of a child being born during the period
of a valid marriage between the mother and any father, or within 280 days after
its dissolution if the mother remains unmarried. Unless it is shown that the
parties to the marriage had no access to each other at any time when he could
have been conceived, his birth is good enough to be treated as a conclusive proof of he/she being legitimate.
Under Section 112 of the Indian Evidence Act, 1872 (herein after referred
to as ‘the Act’), if the applicant is domiciled in India on the date of
application, the Indian court has jurisdiction to grant a declaration that he/she
is the legitimate child of his parents.
Indian law, whether Hindu law or Muhammadan law, only recognizes the
concept of legitimacy of a child and not of legitimation. When there is any
doubt as to legitimacy of a child, under Muhammadan law the acknowledgment by
the presumptive father is the proof that the child so acknowledged is the
legitimate child of the presumptive father, provided that legitimacy is
possible.
8. ILLEGITIMATE CHILD
The usual conflict of laws case involving an illegitimate child arises in
the follows scenarios: An illegitimate child born in State A, and while
domiciled in that state, or in State B, the parents do an act which would have
the effect of legitimating the child according to the law of that jurisdiction.
Every illegitimate child is an heir of the person who, in writing, signed in
the presence of a competent witness, acknowledges himself to be the father, and
inherits his or her estate, in whole or in part, as the case may be, in the
same manner as if he or she had been born in lawful wedlock; but he does not
represent his father by inheriting any part of the estate of his father’s
kindred, either lineal or collateral, unless, before his death, his parents will
have intermarried, and his father, after such kind of marriage, acknowledges
him as his child, or adopts him into his family; in which case such child
irrespective of it gender is deemed legitimate for all purposes of succession..
9. ADOPTED CHILDREN
The domicile
of adopted children in England is determined in the same manner as that of the
natural child. This position is also valid for Australia and Canada. That is
also the effect of Sec.12 of the Hindu Adoption and Maintenance Act 1956.
In English Private
International law, there is yet no authority on the domiciled of adopted child.
Dicey and Morris suggested that, “ the
domicile of an adopted infant is during the lifetime of the adopting parent the
same as, and changes with the domiciled of that parent[22].”
In the UK, once an adopted child attains the age of 18 years or turns
adult they have a right to apply to see their birth records under s.60 of the
Adoption and Children Act 2002[23].
Furthermore, they have the right to join the Adoption Contact Register, which
is aimed at helping adopted people gain the contact details of birth relatives
who are also registered.
10.
CONCLUSION
While discussing the concept of domicile, it is found that domicile
is not concept which should be seen in isolation. It has its own branches such
as Domicile of origin, domicile by choice, domicile of independent person and
domicile of dependent person. Further, the concept of Domicile under Private
International Law is not a steady concept. Again, it is found different
theories of domicile in different countries. Hence, it is necessary to study
the domicile from head to toe. In this
paper researcher studied one branch of domicile i.e. domicile of dependent
person. In common law countries, dependents, i.e., married woman, minors and
mentally deficient persons were regarded as incapable of acquiring a domicile
on their own and their domicile followed that of the person they were regarded
as being dependent on.
The common law rule
provides that, wives were dependent on their husband and minors dependent on
their parents from whom the minor derived his domicile of origin. Such concept is deferent in different
countries. For that, researches collected views of leading practitioners and
asked question regarding concept of dependent domicile through interview
method. It is found that, the dependent’s domicile of wife creates
discriminations in Indian society. She cannot easily acquire her choice of
domicile as in English law. There are exceptions given in Sec 15 16 of Indian
succession act 1925 but such exceptions are applied in very rare case. Further,
researcher asked question on child custody. It seems to be resulted that, when
parents of children start living separately and if custody is handover to the mother,
then minor majorly faces a domicile problem as he is having domicile of origin
and his domicile is dependent on his father and his parents living separately.
Hence, under private international law, the concept of domicile plays very
important role. Domicile is nothing but a permanent home of an individual.
Hence, through these chapters researcher tried to analyze the concept of dependent
domicile in Indian and English Law.
[1] Vishwanathan R v.Rukn- Ul-Mulk Syed Abdul
Wajid , A.I.R. 1963 SC 1 (INDIA).
[2] Conflict of laws is a set of rules of procedural law, (Dec. 10,2023, 10.04 AM) http://conflictoflaws.uslegal.com/,
last seen at 10th December 2023.
[3] Domicile and
Residence, (Dec. 10, 2023, 11.00 AM) https://www.scribd.com/doc/19446932/DOMICILE-UNDER-INTERNATIONAL-LAW.
[7] Definition of
domicile, (24th Dec. 2023,
3 pm) http://www.duhaime.org/LegalDictionary/D/Domicile.aspx.
[13] DICEY AND MORRIS, CONFLICT OF LAW, 133(14th ed.1999).
[14] Ibid at 135.
[17] 1954 All. 457(INDIA).
[20] DICEY , MORRIS AND COLLINS, CONFLICT OF LAW,
156( 14th ed 1991).
[22] DICEY, MORRIS AND COLLIN, THE CONFLICT OF LAW, 110 (4th Ed. 1998).
[23] The Adoption and Children Act 2002, ( 3rd Jan.2024, 2pm) http://www.legislation.gov.uk/ukpga/2002/38/contents.
Article Information
CRITICAL ANALYSIS OF DOMICILE OF DEPENDNET PERSON UNDER PRIVATE INTERNATIONAL LAW
Authors: DR. SAYALI M CHANDEKAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/16
- Issue 7
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International Journal for Legal Research and Analysis
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- ISSN 2582-6433
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