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LAW OF DOMICILE UNDER PRIVATE INTERNATIONAL LAW

Introduction

Domicile is basically a legal term that denotes the permanent residence of an individual. It is important for an individual to have a domicile so that he or she can be connected with the legal system of that country and can claim the benefits arising from it. For example – A domicile is necessary for legal purposes such as paying taxes, voting, etc.

Principles governing the domicile

These principles were structured by Lord Westbury in the case Udny v. Udny[1] in 1869. The principles are- 

  1. Domicile is mandatory and compulsory- It is a well-established rule in private international law that there can be no person without a domicile since domicile connects an individual to the legal system. This was also held in the famous case of Mark v. Mark[2]. Domicile is generally acquired by birth or by choice. 
  2. No person can have two domiciles at the same time- No individual can have two domiciles at a time. If an individual acquires a new domicile by choice then the old domicile lapses. It is impractical to have two domiciles at the same time.
  3. Domicile should be connected with the territorial system of law –The main reason for having a domicile is to connect an individual to a particular system of law to be governed. However, the laws relating to succession, marriage, and divorce might vary from religion to religion in the same country.
  4. The presumption in the favour of the continuance of existing domicile – A person is expected to have the last domicile unless the contrary is proved. The burden of proof as to change in domicile lies on the party who questions the domicile of an individual. 

Kinds of Domicile and how it is acquired

1.     DOMICILE OF INDEPENDENT PERSON – The domicile of an independent natural person can be determined in two ways-

1.1 Domicile by origin

According to Private International law-

  1. A legitimate child brought into the world during the lifetime of the father has the domicile of the country wherein his father was domiciled at the hour of his introduction to the world.
  2. A legitimate child brought into the world after the demise of the father has the domicile of the country wherein his mother was domiciled at the hour of the birth.
  3. An illegitimate child has been given the domicile of the country in which his mother was domiciled at the hour of his introduction to the world.

Consequently, the domicile of origin isn’t subject to the spot where the child was at the hour of the birth, nor on the spot where the father or mother lives, however on the domicile of the father and mother at the hour of his introduction to the world.

Exception – Domicile of foundling is the country in which he is found.

1.2            Domicile by choice

Any Independent natural person is at liberty to get a domicile of his/her decision. Nonetheless, his/her decision for a change in domicile is resolved by the law of his/her current residence.

In English Private international law, before the approaching into force of the domicile and matrimonial proceeding act, of 1973[3], a minor, maniac, and women had no ability to gain the domicile of decision. While in Indian regulation wedded women can obtain a domicile of decision under particular conditions.

To gain the domicile of decision, the accompanying two circumstances are to be fulfilled

  • He/she should have a home in the nation of domicile of decision.
  • Should have a goal to live permanently in the nation of domicile of decision.

In Loicis De v. UOI[4], it was held that an individual who professes to have laid out his domicile of the decision should lay out that he had framed an aim of making a permanent home in the nation and living there permanently.

2.     DOMICILE OF DEPENDENTS

Those who are reliant on someone else are called dependents. Married women, mentally immure, minors/infants, lunatics, idiots, and physically and mentally disordered persons come within the meaning of dependents. So the dependent are incapable of acquiring the domicile of their own choice but are conferred with the domicile of the person, on whom they are dependent. For example-A married woman has a domicile of a husband, a legitimate child (minor) has the domicile of a father, and the illegitimate child has the domicile of the mother.

So, the domicile of the dependent gets changed when the person on whom they are dependent, changes his/her domicile. A dependent person cannot abandon his domicile of Dependency.

2.1            A Domicile of a Married Women

The legal status of a woman can be categorized under three heads-

  • In primitive days (ancient times) women were considered a tool for husbands.
  • In the middle period, limited status was given to women to maintain property.
  • In the modern period, women are considered independent completely and need not be represented by their husbands.

Before the Domicile and Matrimonial Proceedings Act, 1973[5] in England married women were likewise framed as a piece of dependents individual, the domicile of wedded women was reliant upon the domicile of their husband yet after the said Act come into force a married lady’s domicile was not subject to her husband.

On the off chance that marriage is void then the wife doesn’t obtain the domicile of her husband. However, in the event that she goes to one more nation and lives with her putative spouse, she might obtain the domicile of decision. Assuming marriage is void on the ground that she was at that point a spouse of somebody, she can’t secure the new domicile and her domicile will remain the same as of her legal husband. The domicile of a widow stays that of her husband except if she transforms it and gains a domicile of decision.

2.2            Domicile of Children

The domicile of Children/ infants can be studied under the following heads-

  • A Child’s Domicile Of Origin

Any individual gains domicile by birth. As such, a child gets a domicile by birth. In the event that the child is legitimate, he/she obtains the domicile of his dad. Assuming the child is illegitimate or after the demise of the father, the domicile is that of his mother. Assuming that he has no guardians, his domicile most likely can’t be changed (orphan). In the event that he/she is an adopted child, his domicile is determined as if he was the real offspring of the adopted parent or guardians.

  • Domicile Of Minor Children

With the purpose of domicile the minority in Indian regulation goes on till an individual accomplishes the age of 18 years, while in English regulation, under section 3 of domicile and matrimonial proceeding Act, 1973[6], minority ends at 16 years old or on marriage.

Statutory changes in England have reduced the age till which a person is regarded to be a minor from 21 to 16 and altered the rule in cases of minors under the age 16whose guardians are living separated or were living separated when their mother died. Domicile of the child will be the same as the mother if he was staying with the mother, or has not stayed with the father thereafter or after the mother died.

  • 2.3            Domicile of Lunatic or Mentally Disordered

The law as respects the mentally disordered can be momentarily expressed. Such an individual can’t gain a domicile of decision and holds the domicile he had when he was started to be lawfully treated thusly. Notwithstanding, in the event that he was born intellectually disordered or he ends up being intellectually disordered while he was a reliant child, his domicile is determined, so long as he remains mentally disordered as if he kept on being a reliant kid.

Conclusion

The law of house in India is completely clear and is liberated from any ambiguities. The equivalent is significant for settling the “contention of laws” in India. There is by all accounts an obliviousness of the idea in its actual point of view in India. There is a dire need to spread “public mindfulness” in such a manner. Especially in India, there is an absence of provisions with regards to domicile. Concluded cases depend on English regulations as it were.

Author(s) Name: Vanshika Srivastav (The ICFAI University, Dehradun)

References:

[1]Udny v Udny [1869] Lr 1 SC & Div 441

[2] Mark v Mark [2005] UKHL 42 at 37

[3]Domicile and Matrimonial Proceeding Act, 1973

[4]Mr. Louis De Raedt & Ors v Union of India And Ors., (1991), AIR 1886

[5]Domicile and Matrimonial Proceeding Act, 1973, s 1

[6]Domicile and Matrimonial Proceeding Act, 1973, s 3