SCHOOL OF LAW, NARSEE MONJEE INSTITUTE OF

MANAGEMENT STUDIES, BENGALURU

“Domicile of Independents”

PRIVATE INTERNATIONAL
LAW

SUBMITTED TO: SUBMITTED BY:

Prof. Sneha Priya Yanappa Prithvi Shetty

Professor of Law 81021219024
NMIMS (SOL), Bengaluru BBA LLB
ABSTRACT
This article illustrates why a country's home base is so crucial. Domicile is a crucial link
between an individual and a nation-state. When there is friction, the domicile steps in to help.
A person is considered to have a home in a country when he or she dwells there permanently
without plans to leave. When someone moves away temporarily, that doesn't mean he no
longer has a permanent residence. The rule of domicile at birth cannot be broken. There will
always remain a person's birthplace, or domicile of origin, lurking in the shadows, no matter
where they choose to set up permanent residence. When the person eventually decides to
forgo their original domicile, it steps in to help fill in the blanks. Every person is born with a
fixed domicile of origin, which they never change. Therefore, it is critical to grasp how
the residence is interpreted under private international law. The concept of Domicile of
independent individual is introduced and briefly discussed.

KEYWORDS: Domicile, Independent, Residence, Birthplace, Private International Law

 DOMICILE OF INDEPENDENTS

INTRODUCTION

As far as the law is concerned, a person's domicile, or permanent address, is the place where
they establish their own permanent residence. In other words, a domicile is an
accommodation or a residence in a specific location that is established with the aim to stay
there indefinitely, a residence that has been designated as the last abode. The definition of
"domicile" is incorrect in every act. An individual is said to have domicile in the nation where
he lives permanently without intending to move elsewhere. However, just because a person
temporarily resides somewhere else does not mean that they no longer have their domicile
there.

The concept of domicile is based on an individual's freedom to establish his residence

anywhere in the world. The boundaries of a country do not restrict a person's choice of
residence. This implies that a person may be a citizen of one nation yet reside in another.
Additionally, a person may be stateless but he cannot be without a place of residence.

IMPORTANCE OF DOMICILE

• Domicile serves as a tying element for numerous legal frameworks.

• Domicile can be utilized as a legal link, which is necessary for the court to assume
jurisdiction or to recognize and assume the jurisdiction of a foreign court.
• A person's right to vote, capacity to hold a government position, eligibility for support
for needs like unemployment or illness, and tax liabilities are all based on their place
of residence.
• No one is without a domicile since a person must be connected to a legal system in
order for his or her legal relationships to be governed by it.

PRINCIPLES GOVERNING DOMICILE

1)A person's domicile is determined at the time of his or her birth, with a legitimate child
inheriting the domicile of his or her father, an illegitimate child inheriting the domicile of his
or her mother, and a foundling inheriting the domicile of the place where he or she was found
or discovered unless there is evidence to the contrary. This domicile of birth remains in effect
until the individual acquires a new domicile, often known as a domicile of choice.

2) A person may not have two separate permanent residences.

3)In India, for example, different sets of regulations apply to different groups of people based
on their religion, race, or caste, so even while a person's place of domicile determines which
body of law applies to them, this does not necessarily mean that everyone is subject to the
same laws.

4) The continuity of a current residence is presumed to be desirable.

5) A person's domicile is determined under the English Common Law System according to
the English notion of domicile, not the foreign idea of domicile, with some statutory
exceptions.

DOMICILE OF INDEPENDENT PERSON

A free and independent individual can return to his country of birth if he decides he no longer
wants it to be his domicile of choice. Domicile of Independent person can be broadly
categorized into two categories.

1. Domicile of Choice
2. Domicile of Origin

DOMICILE OF CHOICE

Any self-reliant adult is free to establish residence anywhere they like. To the extent that a
man chooses to make a certain location his permanent, primary residence, the law will
presume that he intends to make that home his permanent, primary residence for an indefinite
period of time known as the domicile of choice. There must be a place of residence that is
voluntarily agreed to and not prescribed or governed by any external necessity, such as the
duties of office, the demand of creditors, or the relief from illness, and that is fixed not for a
limited period or specific goal, but rather is general and indefinite in its future introspection.

ACQUISITION OF A DOMICILE OF CHOICE

New domiciles require both residence and intention. There needs to be evidence that the
individual in the issue set up shop in a specific country with the long-term purpose of making
that place his permanent home. The clear intent is not enough on its own. Even if residency
and intent must be in sync with one another, temporal simultaneity is not required. The plan
can happen before or after a home is actually built.
 1. RESIDENCE

To be considered a resident of a country under its law of residence, one must be physically
present there as a citizen or permanent resident. It's simple to prove that a place of habitation
is needed. A person can be considered a resident in a country where they do not legally be
present. In precedent cases, the presumption of domicile strengthened with the duration of
residency and was difficult to overcome. Recent decisions have tended to give less weight to
the time of residence, holding that while it is a substantial consideration, it is rarely
conclusive.

It is indisputable that the duration of residency is not the only criterion of domicile,
notwithstanding the importance that may be placed on it. Domicile can neither be established
nor lost by a lack of continuous presence, regardless of the duration of stay. The nature of a
person's stay in a country can only be determined by the circumstances surrounding their
arrival. In a nutshell, the locals are required to perform well on both qualitative and
quantitative tests.

Michael Anthony Rodrigues, the plaintiff in Michael Anthony Rodrigues v. the State of
Bombay1, was born in 1918 to Goan parents and moved to Bombay in 1927, where his father
was a tailor. Michael hasn't returned to Goa since. He received his education in Bombay, and
in 1936 he went to work for his father. He enlisted in the Royal Indian Armed Forces in 1946
and served throughout World War II. He left the Army and listed Bombay as his permanent
home as his address. Then, in 1948, he returned to his father's firm and moved back to
Bombay. Additionally, he was added as a registered voter to the city's official records. This
led the Bombay High Court to conclude that he had established a residence of choice in
Bombay and renounced his birthplace of Goa.

In contrast, if one has the appropriate intent, a short period of residency is not a bar to
establishing a domicile. If a person currently resides in one nation and wants to move to
another, he or she will obtain domicile in the new country the moment they set foot in there.
In White v. Tennant2, a man and his family left state P and relocated to state R, almost a mile
away from their former residence. After folding up his gear, he headed back to State P with

1
Michael Anthony Rodrigues v. the State of Bombay 1956 Bom. 729.
2
White v. Tennant (1888) 31 West Virginia 790.
the intention of spending the night with a distant relative. That same night, he became unwell
and passed away. The court determined that he had a home in state R.

HABITUAL RESIDENCE

A person can have a residence in more than one country at the same time. If you have two or
more homes, one of them must be proven to be your primary residence in order to qualify for
the domicile of choice status. The case of Plummer v. IRC3 firmly proved this. The taxpayer
was originally from England. She was a student in England, and she lived there for the better
part of each year. However, she now considered Guernsey her permanent home and spent
more than three months there a year with her family. The taxpayer intended to live in
England, her birthplace and current domicile, but Hoffman J. ruled that she might gain a
domicile of choice in Guernsey if she could prove that she actually lived there. She was not
able to accomplish this. She was still becoming acquainted with her new home in Guernsey.
As a result, she never moved away from England.

2. INTENTION

For a person to establish a domicile of choice, he must show that he intends to make his
current place of residence his permanent home. If the word permanent is understood to mean
"not temporary," then this makes perfect sense. For example, Lord Westbury wrote that in
Udny v. Udny4, the desire was to live for an indefinite period of time. Baroness Hale, in a
more up-to-date statement to the same effect, referred to a desire to stay "permanently or
indefinitely." Therefore, the core of these and other comparable statements is that the planned
residency cannot be for a limited period, whether that limitation is represented in terms of
time or made dependent on the occurrence of an event, such as the completion of a certain
activity.

A conditional intent is obviously insufficient. A French national who came to England with
the intention of staying and marrying a British national who was already married did not gain
an English domicile of choice in the case of Cramer v. Cramer5. Her decision to stay in the
country hinged on her getting a divorce from her prospective spouse and on their relationship

3
Plummer v. IRC 1988] 1 WLR 292.
4
Udny v Udny 1869
5
Cramer v Cramer [1987] 1 FLR 116.
lasting. If her goal had been to stay in this place no matter what, that would be a different
story.

UNLIKELY CONTINGENCIES

Domicile cannot be acquired if the end of residence is conditional on the occurrence of a

circumstance that is itself clear and believable. A man does not have the requisite state of
mind required by law if he plans to return to his country of birth upon a clearly predicted and
reasonably anticipated contingency; however, if he has in mind only a theoretical possibility,
such as acquiring a fortune, such a state of mind is consistent with the requisite state of mind.

The fact that the propositus in Re Furse6, who originally had a Rhode Island domicile of
origin, would leave England after nearly forty years of residence if he could no longer engage
in the physical labour of running a farm that did not prevent a finding that he had acquired a
domicile of choice in England. If the contingency is known, then it must be determined if
there is a significant likelihood that it will occur; if so, this will impede the purchase of a
domicile of choice.

EVIDENCE OF INTENTION

Whether or not someone possesses the necessary purpose is a matter of fact. The evidence
required to prove the purpose cannot be firmly established by regulation. In the end, all that
can be said is that a man's mental condition can be inferred from any and every occurrence in
his life. A person's entire life, including events both before and after the purported acquisition
of the selected domicile, should be taken into account. Nothing can be neglected because it
can indicate the place he considered home permanently at the time. Insignificant details
should not be ignored.

Case in point: Kedar Pande v. Narayan Bikram Shah7, an Indian courtroom drama that may
serve as an illustration. In this case, the issue before the Supreme Court was whether or not
Narayan Bikram Shah had established legal residence in India in 1949. Narayan Shah's place
of origin was Nepal, where his father had a home. Narayan Shah attended school in India
between the years 1934 and 1938. He was born in Benaras. After his father, Ram Raja,
constructed a palace at Ram Nagar between 1938 and 1941, he moved there and remained
there till his death. Narayan Shah subsequently constructed a palace on the site. Narayan

6
Re Furse [1980] 3 All ER 838.
7
Kedar Pande v. Narayan Bikram Shah AIR 1966 SC 160
Shah and his brother filed a partition claim in 1982. He maintained his role as a property
manager during the legal process and beyond, as well. He and his wife were able to purchase
land in Patna and other locations after the partition. On March 23, 1949, he was awarded an
Indian passport listing Ram Nagar as his place of residence and nationality. He visited Nepal
once when he was around 10 or 12 years old. He avoided traveling to Nepal after 1953. He'd
settled down with an Indian bride. All of his kids went to Indian schools. He was the head of
the Union Board before the Gram Panchayat was established. His registration in the Ram
Nagar seat has been completed. He ran for office in the 1957 general election, seeking the
Ram Nagar seat. The Supreme Court ruled that it was established beyond a reasonable doubt
that Narayan Shah had obtained a domicile of choice in India long before 1949, after
considering all the events and circumstances of his life.

ABANDONMENT OF DOMICILE OF CHOICE

When either factum or animus is no longer present, the preferred residence is no longer
maintained. The same criteria that must be met in order to obtain a domicile also apply to the
abandoning of a domicile of choice: either an actual move to the new country or a change in
where you want to live. A person's domicile of choice is deemed abandoned whenever he or
she no longer maintains a permanent residence in the country designated as the domicile of
choice. As an example of how these considerations work in practice, consider the Goods of
Raffenel8. The French naval officer's widow, Madame Raffenel, was born in England. She
chose to make France her permanent residence. Having decided to leave France forever, she
boarded a cross-Channel streamer in Calais. Unfortunately, she fell ill just before the
streamer was scheduled to leave, and she spent several months in Calais until her death. It
was determined by the court that she possessed a French domicile at the time of her death
since she had not abandoned her French domicile even though she intended to do so. If she
had left the French territorial seas, her English domicile would have been reinstated.

DOMICILE OF ORIGIN

In accordance with custom and common law, a newborn is automatically considered a legal
resident of his or her country of origin. Origin of citizenship is allowed on the grounds of
genesis. Until the individual establishes a new permanent residence, it will continue. Only by

8
(1863) 3 SW & Tr. 49
subsequently acquiring a new domicile does the first domicile cease to exist after a person
has abandoned it in anticipation of relocating to a new location. When a person gives up his
"domicile of choice," his "domicile of origin" is automatically restored.

If a child is born after a mother has passed away or if an illegitimate child is later legitimated,
the mother's country of origin will still be considered the place of birth. As adopted children
are considered to have been born within a valid marriage, it is likely that they will take on the
legal residency of their adoptive parents. The place of birth is the determining factor in
determining the person's domicile. A child's domicile of origin is usually decided by his or
her parents' domicile, although there are rare circumstances like Re McKenzie9 where the
place where the kid was found is used instead.

One can be considered a domicile of origin citizen of a country even if they have never set
foot there. Even though the infant in Grant v. Grant10 was born in India, the court decided that
his domicile of origin should be England because it was where his father was from, that the
original home is the most difficult to abandon is demonstrated.

RESILIENCE AND REINEVNTION OF DOMICILE OF ORIGIN

The social variables are adequately reflected in the rules of domicile of origin. A person is
born with it, and it stays with them no matter where they go or what they do. It also has a
high degree of tenacity, making it difficult to lose, and reviving itself instantly if its home is
destroyed. If a person has left his country of origin with the goal of never returning, his
domicile of origin persists until he acquires a domicile of choice.

In Bell v. Kennedy11, Bell had a Jamaican domicile of origin but couldn't decide between
Scotland and England once he left the island. The House of Lords agreed with him and ruled
that he had not abandoned his Jamaican nationality or domicile.

In the case of IRC v. Bullock12, a man with a Canadian domicile of origin resided in England
for forty years and married an English woman who did not obtain an English domicile of
choice. His domicile of origin was upheld by the Court of Appeal because he intended to
return to Canada in the event of his wife's death.

9
Re McKenzie 180 U.S. 536.
10
Grant v Grant LC 2002 HC 30.
11
Bell v Kennedy [L. R.] 1 Sc. & Div. 307.
12
IRC v Bullock [1976] 1 WLR 1178.
CONCLUSION

A subset of Law that deals with issues like where someone lives (their "domicile"), which
country they are a citizen of (their "nationality"), and which laws apply to situations that
occur in states outside of both of their countries. Private international law is the name for this
body of legislation. Domicile, Nationality, and Citizenship are terms that have caused much
controversy and complex misunderstandings among those studying Private International Law
and Public International Law.

Although the term citizenship is commonly used in municipal law, the term nationality refers
to an individual's political and constitutional status as a citizen of a particular country. In
most cases, a person is considered a citizen of a country when they enjoy all of the legal
protections afforded to citizens of that country, including voting and holding public office. A
person's residence is the group with which they have the strongest ties. And a person's
nationality is determined by the place where he has settled permanently. A person's domicile
is their main place of residence. That a person can live in one country while also holding
citizenship in another is clear.