DOMICILE- INDIAN PERSPECTIVE

Domicile attaches from birth (domicile of origin) and may also be acquired (domicile of
choice).
According to English Private Intl law
- A legitimate child born during the lifetime of the father has the domicile of the
country in which her father was domiciled at the time of birth
- A legitimate child born after the death of the father has the domicile of the country in
which her mother was domiciled at the time of birth
- An illegitimate child has the domicile of the country in which her mother was
domiciled at the time of birth
- Domicile of foundling is place where she is found
Indian position is the same except a legitimate child born after the death of the father has the
domicile of the country in which her father was domiciled at the time of his death.
DOO is not dependent upon the place where the child is born nor the place where her father
or mother reside but based on the domicile of the father or mother as the case may be

Provisions of the Indian Succession Act, 1925 relating to Domicile: They are as follows:
1. Section 6 provides that a person can have only one domicile for the purpose of succession
to his moveable property.

2. Section 7 provides that the domicile of origin of every person of legitimate birth is in the
country in which at the time of his birth his father was domiciled; or, if he is a posthumous
child, in the country in which his father was domiciled at the time of the father’s death.

3. Section 8 pertains to the domicile of origin of an illegitimate child and it provides that the
domicile of origin of an illegitimate child is in the country in which, at the time of his birth,
his mother was domiciled.

4. Section 9 pertains to the continuance of domicile of origin and it prevails until a new
domicile has been acquired.

5. Section 10 pertains to the Acquisition of New Domicile and a man acquires a new domicile
by taking up his fixed habitation in a country which is not that of his domicile of origin.
[principle here is factum et animus- residence + intention]

6. Section 11 pertains to the Special Mode of Acquiring Domicile in India and it provides that
any person may acquire a domicile in India by making and depositing in some office in India,
appointed in this behalf by the State Government, a declaration in writing under his hand of
his desire to acquire such domicile; provided that he has been resident in India for one year
immediately preceding the time of his making such declaration.

7. Section 12 provides that a person who is appointed by the Government of one Country to
be its ambassador, consul or other representative in another country does not acquire a
domicile in the latter country by reason of only residing there in pursuance of his
appointment; nor does any other person acquire such domicile by reason only of residing with
such first-mentioned person as a part of his family, or as a servant.
8. Section 13 pertains to continuance of new domicile and a new domicile continues until the
former domicile has been resumed or another has been acquired. [revival of domicile debate
was discussed in midsem, not really relevant here but you can refer to it]

9. Section 14 pertains to the Minor’s Domicile and the domicile of a minor follows the
domicile of the parent from whom he derived the domicile of origin.

10. Section 15 pertains to the domicile acquired by Woman on marriage and it provides that
by marriage, a woman acquires the domicile of her husband, if she had not the same domicile
before.

11. Section 16 pertains to the Wife’s domicile during marriage and it provides that a wife’s
domicile during her marriage follows the domicile of her husband. However, this does not
apply if both of them have been separated by a Court of Competent Jurisdiction.

12. Section 17 pertains to the minor’s acquisition of new domicile and it provides that save as
hereinbefore provided by this part, a person cannot, during minority acquire a new domicile.

13. Section 18 pertains to lunatic’s acquisition of new domicile and it provides that an insane
person cannot acquire a new domicile in any other way than by his domicile following the
domicile of another person.

14. Section 19 provides that if a person dies leaving moveable property in India, in the
absence of proof of any domicile elsewhere, succession to the property is regulated by the
law of India.

Rule- Domicile of origin continues till DoC is acquired (refer back to Re Lloyd v. Evans)- it
has also been held in a large number of cases that if a person loses DoC, the DoO is
automatically revived

Introductory case which is applicable for basically everything-

1. Sondur Gopal v. Sondur Rajini (2013) SC

Coram: C.K.Prasad & V.Gopala Gowda, JJ.

Facts: Gopal and Rajini married at Bangalore in 1989 as per hindu rites and ceremonies.
Gopal was a software engineer and went to Sweden in July, 1989. Rajini also went to Sweden
in November, 1989. In 1993, they were blessed with a Child named Natasha who was
diagnosed with down syndrome. They bought a home in December 1993 and also applied for
Swedish Citizenship. In 1997, they were granted Swedish citizenship. In June 1997, the
Couple moved to Mumbai and this was because the employer of the husband was setting up
business in India. In 1999, his employer moved to Australia and he moved to Sydney to
pursue his job. The couple and Natasha had a sponsorship visa for 4 years and in 2000,
husband disposed off the property in Sweden. In July 2001, the husband lost the job due to
recession and his sponsorship visa had also expired. Subsequently, they went to Sweden. In
October 2002, Gopal again got a job in Australia. In December 200, Wife and Children went
to Mumbai and later in January 2003, they joined Gopal in Australia. In December 2003,
Wife and Children came back to India on a tourist visa. In April 2004, the Wife filed a
petition before the Family Court, Bandra for judicial separation under Section 10 of the
Hindu Marriage Act, 1955 and the issue pertained to the maintainability of the petition.

Husband’s Contentions: First, The husband argued that since the parties were not domiciled
in India, the Hindu Marriage Act would not be applicable.

Second, that acquisition of Swedish Citizenship deemed giving up on the Domicile of Origin.
The parties had acquired the domicile of choice and there was intention + residence.

Third, he submitted that he was a Swedish National domiciled in Australia. Since he was a
Swedish National, domicile of origin was abandoned and Domicile of Choice was adopted.

Fourth, it was submitted that the Domicile of the wife was linked to the domicile of the
Husband and the husband had abandoned the Domicile of Origin. Since Gopal’s domicile
was Australia, it was argued that Rajini’s domicile was Australia as well.

Wife’s Contentions: It was argued that the Domicile of Origin was not abandoned. Second, it
was argued that wife had an Independent domicile from that of her husband. Alternatively, it
was argued that on shifting to Australia, the Domicile of Origin was revived. Therefore, it
was argued that the Family Court had jurisdiction.

Courts: The Family Court held the Petition to be not maintainable, the Bombay High Court
held the petition to be maintainable and against the decision of the Bombay High Court,
Gopal preferred an appeal before the Supreme Court. Before the Supreme Court, the Husband
argued that the Hindu Marriage Act, 1955 only applies to Hindus domiciled in India. Per
contra, the Wife argued that the Hindu Marriage Act, 1955 applies to Hindus irrespective of
their domicile. Wife referred to the judgment of Prem Singh v. Dulari where the Calcutta
High Court held that the Act applied to Hindus irrespective of Domicile. Second, they cited
Virendra Singh v. State of Rajasthan where it was held that the Hindu Marriage Act applies
to Hindus wherever they reside. Section 1(2) of the 1955 Act provides that the Act applies
also to Hindus domiciled in territories to which the Act extends who are outside the said
territories.

Held: SC held that the Act would apply to Hindus outside the territory of India only if such a
Hindu is domiciled in the territory of India. Residence is important if it is accompanied with
the intention to reside permanently.

The Court held that the domicile of origin was revived i.e. India and the Courts approach was
based on the revival of domicile of origin i.e. Indian Domicile. In ¶34 of the judgment, the
Court observed that the domicile of origin prevails until not only another domicile is acquired
but it must manifest intention of abandoning the domicile of origin.

The Court adopted more of a Common Law approach or English approach and rejected the
US approach on a technical ground. Therefore, if any Hindu changes his or her domicile, the
Act shall not apply to them and the Act only applies to Hindus domiciled in India. This case
reflects the revival of the Domicile of Origin approach. Ideally, had the husband argued that
his domicile was Sweden and not Australia, he would have a better chance of succeeding.
Revival of the Domicile of Origin operates based on law and if the domicile cannot be
ascertained, it operates in a legal manner

RESIDENCE

2. Central Bank of India v. Ram Narayan (residence)

 Facts- Ram carried on business in Multan where was domiciled- Multan became part
of Pak after partition. Ram sent his family to India bc of partition related troubles but
continued to reside in Pak with the view to wind up business there. He later migrated
to India but he had committed an offence in Pakistan in relation to his mortgaged
property

 The issue pertained to Section 4 of the Indian Penal Code, 1860 and Section 188 of
the Code of Criminal Procedure, 1898. Section 4 provided that if at the time of
commission of crime, if the person was domiciled in India, but resided outside India,
Courts would have jurisdiction.

 Holding- Mahajan J- His domicile cannot be determined by his family coming to

India w/o any finding that he had established a home for himself in India. Even if
animus could be ascribed to him, the factum of residence is wanting and therefore he
continued to be domiciled in Pak

 No domicile and therefore India doesn’t have jurisdiction to try the criminal case by
applying penal laws “A person accused of an offence under the Indian Penal Code and
committed in a district which after the partition of India became part of Pakistan
cannot be tried for that offence by a Criminal Court in India after his migration to
India and acquiring thereafter the status of a citizen of India”

3. Michael Anthony Rodrigues v. State of Bombay (Residence)

 Facts- M was born in goa having parents of goan nationality and came to Bombay
where his father had established a tailoring biz which had been going on for 40 years
so he joined his dad after being educated in Bombay. During the Great War he joined
the Royal Indian Armed Forces- after his discharge he gave Bombay as permanent
address. Thereafter he lived in Bombay, joined his dad’s biz again + his name was on
voter roll

 Issue- whether the appellant was a foreigner liable to be sent out of the country under
the Foreigners' Act, or having acquired an Indian domicile he had become a citizen of
India?

 Holding- he had acquired a DoC in Bombay and abandoned his Goan domicile of
origin therefore he was Indian citizen

 What the Court has got to consider is not residence by itself but the quality and
character of that residence. If the quality & character of that residence leads to the
clear inference that the residence was intended not merely for a temporary purpose
but that, that residence was intended in order permanently to live in the place where
 the person was residing, then the residence itself would have a bearing on the question
of the animus. Howsoever short the duration of residence may be, it is enough for
acquiring a DoC [you can refer to White v. Tenant for this proposition though I’m not
sure what the relevance of duration of res is except for how it has a bearing on animus
so this case can also be used for intention I guess]

INTENTION

[Paras Diwan on intention- it is an intangible fact which has to be gathered from all events
and circumstances- it is an act of the mind that is difficult to prove. Intention must be to
reside at a place permanently or for an unlimited time.

English courts take the same view as Indian courts- every conceivable event and incident in a
man’s life is a relevant and admissible indication of the state of mind. “There is not act, no
circumstance in a man’s life, however trivial it may be in itself, which out to be left out of
consideration in trying to question whether there was an intention to change domicile. A
trivial act might possibly be of more weight w regard to determining this question than an act
which was of more importance to man in his lifetime” ]

4. Kedar Pande v. Narayan Bikram Shah

 Facts- In the State Legislative Assembly Elections, Narayan Shah won and was
declared as the returned candidate. As Kedar lost, he filed an election petition under
Section 173 of the Representation of People’s Act, 1951. Kedar alleged that Narayan
was not a citizen of India and therefore, the election was null and void. Admittedly,
Narayan Shah was born to a Nepalese Father. The Domicile of Origin was Nepal and
he was educated at Calcutta from 1934-1938. He stayed at Ramnagar later and was
also a registered voter on the voters list.

 Issue- Whether Narayan Shah is an Indian Citizen within the meaning of Article 5 of
the Constitution of India.

 Holding- Residence in India and also intention to reside permanently--both elements

were concurring at the same time. Accordingly, the Domicile of Choice was held to
be India and Narayan Shah was a citizen for the purposes of Article 5. Therefore, the
Election Petition was dismissed

5. Sankaran Horindan v. Lakshmi Bharti (intention)

 Facts- Krishnan, domiciled in India, went to England to study medicine but his family
stopped giving financial support after a while but he finished his education with the
help of his friend, Hopeworth. He earned a fortune, bought a mansion in Sheffield for
his practice and was living with Hopeworth in a rented flat. Joined the British Health
Service and died in 1950. He lived in England for 30 years and never once visited
India but he wrote letters to his friends and relatives expressing his intention of
returning to India + upon earning sufficient fortune and insurance policy maturing he
would return to India.
  Holding- Kerala HC concluded that he had not abandoned his domicile but the SC
reversed it on appeal stating “it would appear that till 1939 Krishnan has the intention
to return to India. But when he acquired a comfortable practice and purchased a house
in Sheffield, his intention changed”

 SC even looked at how Ms Hopeworth had written to one of his relatives that all she
could say was that Krishnan repeatedly said he would not go back to india

 Declaration of motive and intention may also be considered but by themselves they
are not of much value- looked at Ross v. Ross

6. Louis De Raedt v. UoI (intention)

 Facts: There were 3 Writ Petitions preferred under Article 32 for extension of stay in
the territory of India. Louis was a Belgian and was staying in India since 1937. Mr.
and Mrs. Getter were US citizens and were staying in India since 1948. The
Government of India enacted the Foreigners Act and ordered expulsion of these
foreigners. This was challenged under Article 32 and it was contended that they had
acquired Indian Citizenship under Article 5 and therefore were not foreigners.

 Article 5 provides that every person who has his domicile in the territory of India and
has been ordinarily resident in the territory of India for not less than 5 years preceding
such commencement shall be a citizen of India. The Petitioners were in India 5 years
prior to the commencement of the Constitution.

 Issue- were they domiciled in India? Did they have intention to reside permanently?

 Holding: Domicile of India not acquired

 A foreigner who continued to stay in India on the strength of his foreign passport by
seeking permission of the govt for further stay for period does not indicate that he
intended to make India his domicile

 Post the enactment of the Foreigners Act, the Government of India passed several
circulars under which one could become a citizen through naturalisation. The
Petitioners had retained their original US/Belgian Passports and they could have
followed legal steps to become a citizen as prescribed.

DOMICILE OF A MARRIED WOMAN

1. Introduction

a) Domicile of a married woman is the domicile of her husband. This is characterized as

the domicile of dependency. It’s codified in Section 15 of the Indian Succession Act –
which says upon marriage a woman acquires her husband’s domicile.

b) England followed this position of law until 1973. For instance, Lord Blackstone said by
marriage, the husband and wife are one person in law, i.e., the very being or legal
existence of a woman is suspended during the marriage, or at least is incorporated and
 consolidated into that of the husband, under whose wing of protection and cover she
performs everything. Upon this principle of union of person in husband and wife,
depends almost all the legal rights, duties, and disabilities that either of them acquire by
the marriage.

c) In 1973 this position changed. The change was called for a decade earlier itself by Lord
Denning in Gray v. Formosa where he allowed a woman to have an independent
domicile of her own. He said the previous rule was the “last barbarous relic of wife’s
servitude”.

d) After Denning’s judgment the Domicile and Matrimonial Proceedings Act, 1973 made
fundamental changes to the wife’s domicile. The rule of unity of domicile was
abolished.

2. Cases

a) Lord Advocate v. Jaffrey

Facts

Mrs. Mackinon was married to Robert Mackinon in 1876 and Robert was at that time a Chief
Quartermaster in the Navy. On retiring from the Navy in 1886 till 1893, he lived with his
wife in Abeerdeen. In 1893, owing to his drunken and dissipated habits, it was arranged, at
the instance of his wife that Mackinon should leave Scotland for Australia and this was paid
for by Mrs. Mackinon’s mother. He went to a Rehabilitation Centre in Australia. In Australia,
he had a bigamous marriage with one Willhemmina, with whom he lived until his death from
1902 to 1918. After his departure from Scotland, there was no communication between him
and Mrs. Mackinon. In 1915, she filed a petition for divorce on the ground of her husband’s
desertion and adultery.

Issue

The question was whether Robert had acquired domicile in Australia and whether,
consequently, had acquired a derivative domicile in Australia.

Held

It was held that husband’s domicile was Australia, and therefore, the wife’s domicile would
also be Australia. Since the Domicile of the Wife followed the Domicile of the Husband,
Australia was the domicile and therefore, the Scottish Court had no jurisdiction. It is quite
strange that despite Mrs. Mackinon never having set foot in Australia, her domicile was
Australia due to her husband’s domicile.

b) Attorney General for Alberta v. Cook

The Respondent had obtained a decree for judicial separation from a Court of Alberta, where
both parties resided, in November 1921. The domicile of the husband was Ontario. In 1922,
the wife filed a divorce petition in Alberta on the ground of her husband’s adultery and
cruelty. The suit was dismissed for want of jurisdiction, as the husband was domiciled in
Ontario. Since the husband had changed domicile, the Court denied jurisdiction and wife
could not have an independent domicile of her own and the domicile of the wife was linked
to the domicile of the husband.

c) Prem Pratap v. Jagat Pratap

Facts

A German Domiciled woman married an Indian domiciled in India and set up the
matrimonial home in India. Thereafter, the husband left the wife. The wife filed a suit for
maintenance in an Indian Court and the main defence of the husband was that on
abandonment of the wife by him, the wife’s pre-marriage domicile was revived and therefore,
the Indian Court had no jurisdiction to entertain the plea.

Held

The Court held that the domicile of the wife followed the domicile of the husband. Further,
the domicile of the wife would continue to remain India as the domicile of the husband was
also India. Accordingly, Indian Courts had jurisdiction to try the maintenance petition.

3. INDIA

a) Saeeda Khatun v. State of Bihar

The issue was whether the married women were domiciled in India during their partition. The
Court attached the domicile of the wife to that of the husband who was a citizen of India and
therefore, legitimised their stay in India. Wives benefited from such application of the law
and this was the situation during the partition time where, due to the domicile of the husband,
wives with foreign domicile became citizens of India.

b) Y Narasimha Rao v. Y Venkata Lakshmi

This is actually a case for enforcement of a foreign divorce decree but the court observed that
the rule of unity of domicile was a servile rule.

c) Ravin Parmar v. Dimple Ravin Parmar

The Court allowed the wife to have an Independent domicile based on the facts of the case. In
Sounder Gopal, SC held that the Domicile of the Married Woman is not the domicile of the
husband and the issue was rendered academic. Here, Ravin was working in the US and had
acquired a Green Card. Later, he married Dimple in India as per Hindu Rites and later,
Dimple went to the US for work. Subsequently, Dimple came to Pune and filed a petition for
divorce and custody of the Child. The Husband argued that the Hindu Marriage Act, 1955 did
not apply since he was domiciled in the US.