Introduction to Domicile

Domicile is a legal concept that signifies a person’s permanent home or principal residence,
which is important for various legal implications, such as determining jurisdiction, applicable
laws, and taxation. In India, the concept of domicile is governed by a combination of statutory
provisions and judicial interpretations. Understanding domicile is crucial for individuals,
especially in matters of inheritance, family law, and property rights.

"By 'domicile' we mean home, the permanent home, and if you do not understand your permanent home, I
am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to
it. I think the best I have heard is one which describes the home as the place 'unde non sit discessurus si
nihal avocet; unde cum profectus est, peregrinari videtur.' I think that it is the best illustration, and I use
that word rather than definition, to describe what I mean."

A person is said to have domicile in the country where he resides permanently without
any intention of relocating anywhere else. On the other hand, a person does not cease
to have his domicile in a country merely due to the reason of temporary abode
elsewhere.

Domicile in the Indian Context:

1. Constitutional Provisions: Article 5 of the Indian Constitution relates to the domicile of

individuals in the context of citizenship at the time of India's independence. It specifies
that a person was considered a citizen of India if they were domiciled in the territory of
India at that time.
2. Domicile and Citizenship: Domicile is a crucial factor in determining a person's
citizenship status. The domicile of a person at the time of the Constitution’s adoption
helps in ascertaining their rights and obligations under Indian law.
3. Implications in State Laws: Different states in India have specific laws that may define
domicile for the purposes of residence, voting rights, and other legal considerations. For
instance, some states may require a certain period of residency to establish domicile for
local benefits or privileges.

2) Kinds of Domicile:

There are three different classes of domicile namely-

A. Domicile of Origin,

B. Domicile of Choice, and

C. Domicile of Dependence
A. Domicile of Origin:

By operation of law, every person acquires a domicile of origin at birth which can never be extinguished.
Even if a person obtains a new domicile via choice or by dependence, the domicile of origin is never
completely lost; it merely lies dormant in the background and revives itself if gaps in acquiring and losing
domicile emerge.

The law of domicile has developed predominantly through common law rules. In English law, domicile of
origin was ascribed according to the status of a child as legitimate or illegitimate in the following way-
· A legitimate child takes the fathers domicile at birth to be its domicile of origin, and
· An illegitimate (or posthumous) child takes the mothers domicile.

Development- Domicile of Origin:

The Domicile of origin is a domicile which is ascribed to a person when he/she is born. Lord Westbury
remarked in the leading case of Udny v Udny[3], "That no man shall be without a domicile, and to secure
this result the law attributes to every individual as soon as he is born the domicile of his father, if the child
be legitimate, and the domicile of the mother if illegitimate."

Even if a child is born posthumously or if an illegitimate child is later legitimated, in both the scenarios,
the domicile of origin will remain the same as that of the mother. An adopted child probably acquires the
domicile of origin of the adoptive parents as such a child is treated as if born in lawful wedlock. The
domicile of origin is conferred on the basis of origin. There are exceptional cases like Re McKenzie,
where domicile of origin of a child is determined on the basis of the place where he was found and not on
the basis of his parents' domicile.

The children under 16 and mentally disable person acquire a domicile of dependence which changes with
the change of their guardian. In later life, the child can acquire a domicile of choice after becoming
independent and can also abandon it without acquiring a new one. At that stage the domicile of origin will
revive.

B. Domicile of Choice:

Any person not legally dependent on another (sui juris) may acquire for himself/herself a domicile of
choice at any time by means of physical residence in a place, other than that of domicile of origin, and
intention to reside there for the foreseeable future. However, anyone not sui juris will rely on derivative
domicile which is based on the domicile of those on whom they are legally dependent, this includes
children and some persons mentally incapax. (The general rule for mentally incapacitated persons is that
they retain the domicile they had before becoming incapacitated).

There must be a freedom of choice of residence and not prescribed or dictated by any external necessity
such as the duties of office, the demand of creditors or the relief from illness; and it must be residence
fixed not for a limited period or particular purpose.

Capacity of acquiring domicile of choice

The capacity to acquire a domicile of choice is determined by the law of his existing domicile. Under
English law, before the coming into force of the Domicile and Matrimonial Proceedings Act, 1973, a
minor, a lunatic and a married woman had no capacity to acquire a domicile of choice.

Acquisition of a Domicile of Choice

The two requisites for a fresh domicile are:
a) Residence
b) Intention

Residence
The requirement of residence in a country for the purposes of the law of domicile is physical presence in
that country as an inhabitant of it. Residence is regarded as being a question of fact. Older cases adopted a
presumption in favour of domicile that grew in strength with the length of the residence and was hard to
be rebutted. However, in more recent cases less weight has been attached to the length of residence, and
have taken the view that, although a material consideration, it is rarely decisive. Whatever weight is given
to the length of residence it is undeniable that time is not the sole criterion of domicile.

Intention to reside permanently

The acquisition of a domicile of choice requires an intention by the propositus to remain permanently in
the territory in which he/she resides. The word permanent according to the Shorter Oxford English
Dictionary means lasting or designed to last indefinitely without change, and this indeed is the definition
that most of the judges have recognised when required to consider the nature of the intention necessary
for a change of domicile. In Udny v.Udny[19], Lord Westbury described the intention as being one to
reside for an unlimited time. A more modern statement to the same effect is that of Baroness Hale who
referred to an intention to reside permanently or indefinitely. The essence, therefore, of these and many
other similar statements is that the intended residence must not be for a limited period.

C) Domicile of dependency
By operation of law the domicile of certain persons depend on the domicile of others, since these persons
are incapable of choosing their own domicile, like-
· Infants
· Lunatics
· Married Women

The Law Commission in Britain during 1980s had to come to a decision concerning the issue whether the
domicile of children should have domicile of dependence with respect to their parents or it should be
depending on their habitual residence or the country with which they are most closely connected. It was
proposed that a child should have a 'Dependent Domicile' of their parents but where the tie with the
parents was weakened, he would have an independent domicile.

Three rules were suggested for ascertaining the domicile of children as follows-
· Firstly, if the child lives with both parents, his domicile would be the same as that of the parents and it
will change with the change of parents' domicile. But if domicile of both parents is not same then the
child will take the domicile of the mother.

· Secondly, if the child is living with single parent, he will have the domicile of that parent and it will
change accordingly.

· Thirdly, the child should be domiciled in a country with which he is more closely connected.

If the domicile of father (or, where appropriate, mother) changed while a person is under the age of 16,
then they acquire a domicile of dependency based on father's (or mother's) new domicile. The rules are
more complicated where parents separate or die while their children are under 16.

A woman who married before 1 January 1974, have her husband's domicile (as a domicile of
dependency). On 1 January 1974 the rules changed, so that women who married on or after that date no
longer take their husband's domicile; they retain their own domicile of origin and can acquire their own
domicile of choice. Women who were married before that date retained their husband's domicile as at that
date, but this is treated as a domicile of choice, not dependency.

If a person acquired a domicile of dependency while under the age of 16 (for example, because the
parents emigrated permanently to a new country, with no intention ever to return to the old country) that
persons domicile of dependency will continue until that person choose to leave that country. On
departure, the domicile of origin will revive until you acquire a new domicile of choice.