MODULE III

DOMICILE MEANING

According to Tomlin’s Law Dictionary, ‘Domicile’ is

the place where a man has his home.
As per Halsbury’s laws of England. “A person’s
domicile is that country in which he either has or is
deemed by law to have his permanent home. Domicile is
generally identified with home, but whereas a person
may have no home or more than one, law requires him to
have a domicile and one only”.

Though the root of domicile is permanent

home ,domicile differs from the permanent home
/residence.For eg. if a person establishes a permanent
home in a particular country,but has never been there,he
can not say to have a domicile there
.
An individual is absolutely free to establish his domicile
at any place in the world and can acquire citizenship.
(Domicile relates to a persons civil rights while
citizenship relates to a persons political status).The
territorial boundaries are not a hindrance to his choice of
domicile.It implies that a man may be stateless, but he
cannot be without domicile.[Michael Anthony Rodrigues
v. State of Bombay and others, AIR 1956 Bom 729

Under the common law system domicile is a connecting

factor in personal matters.It is a jural concept used for
the purpose of establishing the connection of a person
with the law of the country with which he is most
intimately connected.For eg.A marries B and establishes
his matrimonial home at Jaipur. After some time a son C
is born to him. Jaipur is the domicile of A , Jaipur is the
domicile of B , as in Indian law the domicile of wife is
her husband’s domicile. Jaipur is also the domicile of C,
as C is dependent of A. C’s domicile will remain Jaipur
so long as he remains a minor. If A changes his domicile,
the domicile of B and C also changes.

Sometimes a domicile connect a person with a system of

law. That systemof law may beof a country or of a part
of a country.For instance in UK or US are countries of
composite legal system and every state has its own legal
system. But in India the situation is different,eventhough
the states do not have different systems of law,but each
community has its own law.Thus for the purpose of
private International law a person may have Indian
domicile , but then to know which system of law applies
to him we will have to find out to which community he
belongs.

Important cases related to Domicile

In Ramsay v. Liverpool Royal Infirmary [(1910) AC
588], a person died leaving behind a will which formally
was valid under Scottish law, though invalid by law of
England. The testator was born in Glasgow in 1845 and
thus had a Scottish domicile of origin. From 1892 till his
death in 1927 he lived in Liverpool England. During
these 37 years he never went to Scotland. Only fact that
still connected him with Scotland was that he often said
that he was very proud to be a Glasgow man. As against
this, he on several occasions, refused to go to Glasgow.
He did not go to attend the funeral of his mother at
Glasgow and arranged for his own burial at Liverpool.
The House of Lords unanimously held that it was not
proved that he made Liverpool his permanent home and
therefore he continued to have his Scottish domicile of
origin.
In Jayaswal Shipping Company v. SS Leelavati [AIR
1954 Cal 415, 420], it has been held that “Domicil” is a
legal term whose contours have often been found to be
vague in jurisprudence. In England, the English and
Scottish domiciles are different. The existence of ‘one
system of law’ is a valid criterion for determining the
area of domicile. The whole of the Indian Union should
be regarded as the area of domicile where in ‘one system
of law’ prevails with Indian Parliament holding all
residuary powers of legislation in spite of the existence
of different State statutes on specified subjects.
General Principles or rules in respect of
Domicile
Under English and Indian Private International Law, the
following are the general principles/rules of ‘domicile’.
1. No person can be without a domicile
Every person must, at all times, possess a domicile. This
is based on the practical necessity of connecting every
individual with a system of law so that his legal relations
may be regulated. A person has freedom to change his
domicile but he has no freedom to be without a domicil.
(Udny v. Udny [(1869) LR 1 SC and Div. 441]). Even
when a person is actually homeless the law attributes a
domicile to him. Thus every person has a legal domicile.
In order to deal with a difficulty of ascertainment of a
domicile of persons who are either incapable of deciding
matters for themselves, such as young children, or who
are of a roving disposition. English Courts have
developed principles for the attribution of a domicile to
every person. Thus, the law assigns what is called a
domicile of origin of every person as his birth. The
domicile will stick to him till he adopts another domicile
so much so that if a person leaves his country of origin
with an intention to live in another, nevertheless his
domicile of origin adheres to him until he actually
acquires another (Kedar Pandey v. Narayan Bikram
[AIR 1966 SC 160]).
On his birth a person acquires the domicile of his father
in case he is a legitimate child and domicile of his
mother in case he is illegitimate.
2. No person can have simultaneously two domiciles
A person cannot have at the same time more than one
operative domicile. It is because law in fixing domicile
of a person connects him with a system of law and if a
person is allowed to have more than one domicile that
purpose will be frustrated (Udny v. Udny [(1869) LR 1
SC and Div. 441]). Since the object of the law is insisting
that no person shall be without a domicile is to establish
a definite legal system by which certain of his rights and
obligations may be governed, and since the facts and
events of his life frequently impringe upon several
countries, it is necessary on practical grounds to hold that
he cannot possess more than one domicile at the same
time.
The Indian Constitution recognizes only one domicile
(Pradeep Jain v. Union of India [AIR 1984 SC 1420]), It
is exceptionally possible for a person to have two
domiciles, such as when a person may retain his domicile
of origin and may also acquire a domicile of choice.
Some countries recognized dual domicile.
3. Domicile denotes connection with a territorial
system of law
The English conception of domicile is based on a
person’s relation with a territorial legal unit, and no
consideration of personal law resulting from adherence
to a religious set.
The rule about domicile is evolved on account of the
universal recognition the questions affecting the personal
status of a human being should be governed constantly
by one and the same law, irrespective of where he may
happen to be or where the facts giving rise to the
question may have occurred.
In some countries it may happen that laws relating to
succession and marriage might not be the same all over
the country, and that different area in the State might
have different laws in respect of these matters. In that
case, each area having a distinct set of laws would itself
be regarded as a country for the purpose of domicile.
In a country like United Kingdom, domicile of United
Kingdom has no meaning. A person is either domiciled
in England, Wales or Scotland. The same is true about
the United States, Canada, and Australia. In India the
position is different. A person may be domiciled in India.
But that would not be enough. It would also be necessary
to find to which community he belongs, as in India
personal laws differ from community to community.
4. Presumption is in favour of continuance of an
existing domicile
In both the Indian and the English private International
laws there is a presumption in favour of the continuance
of an existing domicile. The burden of proving a change
lies in all cases on those who allege that a change of
domicile has taken place (Casdagli v. Casdagli [(1919)
A.C. 145]). This presumption may have a decisive effect,
for if the evidence is so conflicting or indeterminate that
it is impossible to elicit with certainty what the residents
intention is, the court will decide in favour of the existing
domicile.
The House of Lords, in Winans v. A.G [(1904) AC 287]
took the view that the domicile of origin continues to
exist till the end.
Distinction between Domicile and Nationality
1. ‘Nationality’ is membership or condition or status of
belonging to a State of Nation, either by birth or
naturalization whereas ‘domicile’ is the permanent place
or dwelling or home of the person concerned.
2. Nationality depends apart from naturalization, on the
place of birth or on parentage; domicile is constituted by
residence in a particular country animo manendi.
3. By virtue of which a person becomes the subject of
some particular country, binding him by the tie of natural
allegiance is considered by his political status or
nationality, while by virtue of which he enjoys the
character of a citizen of some particular country as such
is possessed of certain municipal rights, and subject to
certain obligations is considered as his civil status or
domicile. The civil status of a person is, thus, governed
universally by one single principle viz., that of a
domicile.
THREE KINDS OF DOMICIL
There are three kinds of domicil-
i. Domicile of origin
ii. Domicile of choice, and
iii. Domicile of dependence
I. DOMICILE OF ORIGIN
Domicil of origin is assigned by law to a child when it is
born. In other words it is the domicil which is
communicated to a person by operation of law at the
time when that person is born.
A domicile of origin is that which every infant has upon
attaining majority, being the domicile of parent at that
time. Domicile of origin is also called ‘Domicile of
Nativity’ as every person at birth acquires a domicile of
origin. It continues to exist so long as he/ she does not
acquire another domicile. The moment a person gives up
his domicile of choice, his domicile of origin revives
(Harrison v. Harrison [(1953) 1 W.L.R 865]). Since
domicile of origin is attributed to every person at birth by
operation of law, the basis of domicile of origin is
paternity or maternity.
According to English Private international law a
legitimate child born during the lifetime of father has his
domicile in the country in which his father was
domiciled at the time of his birth. A legitimate child born
after the death of his father has domicile in the country in
which the mother was domiciled at the time of his birth
(Somerville v. Somerville [(1801) 5 Ves. 750]). The
domicile of origin is not dependent upon the place where
a child is born, not on the place where its father or
mother reside, but on the domicile of the father or
mother, as the case may be.
Domicile of origin is a creature of law and no person can
give it up totally. For the revival of the domicile of the
origin it is necessary that the domicile of the choice
should be abandoned voluntarily.
In an Indian case, Sankaran Horindan v. Lakshmi Bharti
[AIR 1964 Ker. 244], One Krishnan domiciled in India
went to England for higher education in 1925. After
some time his parents declined to give him any further
financial support. With the help of an English friend,
Miss Hopeworth he completed his studies in 1939 and
set up his private practice in medicine in Sheffield. He
earned a fortune. He purchased a mansion in Sheffield
where he shifted his practice. In 1950 Krishnan died in
England. Krishnan lived in England for 30 years and
during this period he not for once he came to India. But
in his letters to his friends he expressed his intention of
returning to India. On these facts the Kerela High Court
came to the conclusion that Krishnan did not abandon his
domicile of origin.
DOMOCILE OF CHOICE
Any independent person may acquire a domicile of
choice. Whether a person has capacity to acquire a
domicile of choice is determined by the law of his
existing domicile. For the acquisition of domicile of
choice the following two conditions must be satisfied:
1. Residence in the country of domicile of choice
2. Intention to live in the country of domicile of choice
permanently (Gour Gopal v. Sipra Roy [AIR 1978 CAL.
163])
“Residence” is an elastic term of which no exhaustive
definition is possible. A man’s residence is prima facie
evidence to show that he is domiciled there. But
residence, however long, cannot be the sole criterion of
domicile.
The word ‘residence’ has a time element in it, but it does
not necessarily mean that a person must have been
residing in the same home or at the same place for a
considerably long period. If a person leaves the place of
his present domicile with a view to settle in another
country, then the moment he sets his foot in that country
he acquires a domicile there (Matalon v. Matalon [(1952)
p. 233]).
Residence (long or brief) + requisite intention =
Domicile
Ramsay v. Liverpool Royal Infirmary, [1930] SC (HL)8-
“ In order to acquire domicile one has to go through
qualitative as well as quantitative test”
“Intention” is an intangible fact. It is an act of mind and
like other mental acts, it is difficult to prove. For the
purpose of acquisition of domicile the intention to reside
at a place or in a country should be to reside there
permanently or for an unlimited time. The intention must
be fixed and not fickle and must be directed towards one
particular place or country.
A person ‘A’ who leaves the country of his domicile of
origin with a view to settle in country X, Y, or Z does not
have an intention to acquire domicile in any one of these
countries. But a person who decides to spend the rest of
his life in a country X is a person who acquire domicile
in that country.
 Residence
Residence is a wide term of which no exact definition is
possible ‘Domicile’ may mean place where a person eats,
drinks and sleeps or where his family or servants eat,
drinks and sleeps. It has also been construed to mean
‘dwell permanently or for a considerable time.
Residence in a country is prima facie evidence of
domicile, the presumption of domicile in favour or
residence becomes stronger with the length of residence.
However, mere long residence is not enough for
acquisition of domicile, nor does the brief residence
negative domicile.
A person may be resident in a country even though he is
living in hotel and staying there for a particular purpose
e.g., for conducting business, taking part in legal
proceeding, etc.
If a person leave the place of his present domicile with a
view to settle in another country, then the moment he set
his foot in that country he acquires a domicile there.
 Intention
The acquisition of domicile of choice taken when a
person resides in a country with an intention of
remaining there permanently. Intention is an intangible
fact. It is an act of mind and it is difficult to prove.
For the purpose of acquisition of domicile intention to
reside at a place or in a country should be to reside there
permanently or for an unlimited time. The weight of
authority in English law defines the mental element
necessary for the acquisition of a country of residence.
It is clear that a conditional intention will not sufficient.
In Cramer v. Cramer, (1987) 1 FLR 116, a women with a
French domicile of origin who came to England
intending to remain here and marry an English man, who
was already married, did not acquire an English domicile
of choice. Here intention to remain was conditional on
both herself and her proposed husband obtaining
divorces and on their relationship continuing.
The intention must be bona fide in the sense of being
genuine and not pretended for some other purpose, such
a getting a divorce to which one would not be entitled by
the law of the true domicile.
Distinguish between domicile of origin and Domicile
of choice
When compared, following are the differences between
the domicile of origin and domicile of choice:
1. The domicile of origin comes into existence by
operation of law, independently or violation of a person
and every person gets it on birth on the other hand, the
domicile of choice is a domicile which is acquired by the
free volition of the person concerned.
2. There is the strongest possible presumption in favour
of the continuance of domicile or origin. As contrasted
with a domicile of choice its character is more enduring,
it holds stronger and less easily shaken off. In fact,
almost overwhelming evidence is required to shake it off.
3. Domicile of origin cannot be abandoned easily as done
in the case of domicile of choice. Since the domicile of
origin is a creature of law and not of free will, domicile
of origin cannot be lost by mere abandonment.
4. If the domicile of origin is displaced as a result of the
acquisition of domicile of choice, the rule of English law
is that it is merely placed in abeyance for the time being.
DOMICILE OF DEPENDENTS [Domicile of
dependence by persons under disability]
The domicile of dependence, or the domicile conferred
on persons legally dependent is one which arises by
operation of law. It applies particularly to children and
mentally disordered persons and married women.
 Domicile of Minor Children/infants
A child’s domicile of origin
A child acquires at birth a domicile of origin by
operation of law viz., if legitimate and born in his
father’s lifetime, the domicile of his father, if illegitimate
or born after his father’s death, the domicile of his
mother. A foundling is domiciled in the country where he
is found.
Domicile of minor
For the purpose of domicile the minority in Indian law
continues till a person attains the age of 28 years, while
in English law, under Section 3 of the Domicile and
Matrimonial Proceedings Act, 1973, minority terminates
on the attainment of 16 years or on marriage.
 Domicile of Lunatics or mental disorder or
mental incapacity
Although there is no direct authority it is generally
argued that the domicile of a lunatic person cannot be
changed either by himself or by the person to whose care
he has been entrusted. Thus it seems that the lunatic will
retain the domicile which he had when he became lunatic
even if he goes to another country and settles there.
 Domicile of Married Women
In English law, a married woman is to be treated as
capable of acquiring a separate domicile; though in the
vast majority of cases she and her husband will,
independently, acquire the same domicile. It is quite
possible for happily married spouses to have separate
domiciles.
In the Indian law, section 15 and 16 of Succession ACT,
1925 provides the general rule thus; on marriage the wife
acquires the domicile of her husband and during
covertures her domicile is the domicile of her husband.
Then it is laid down that wife can acquire her own
domicile in the following two cases:
1. If the wife is living separate under a decree of the
court, or
2. If the husband is undergoing a life sentence.
PRESENCE, RESIDENCE, DOMICIL AND
NATIONALITY OF CORPORATIONS
A corporation is a body corporate legally authorized to
act as a single person. It is an artificial person established
for prescribing in perpetual succession certain rights,
which, if conferred on natural person, would fail in
process of time. It is an artificial being invisible,
intangible and existing only in contemplation of law.
a) PRESENCE
We have seen that an English Court gets jurisdiction over
a person by his mere presence. The same principle
applies to artificial persons like corporations. It is not
necessary that a corporation should be resident or
domiciled or incorporated within the jurisdiction. The
question therefore is when a corporation can be said to be
present with the jurisdiction. The answer is “by doing
business”. The only way in which an artificial entity can
show its presence is by the transaction of business. The
business must have been done in England not merely
done with England. This is ascertained by examining
whether an agent has been employed in England with
authority to enter into transactions binding upon the
corporation. If he only receives offer in England which
he transmits abroad for acceptance, there is no business
done in England. It is also necessary that the agent must
have operated at a fixed place of business for a definite
period of time, it does not matter that the place of
business is temporary or that the time of business is very
short. Thus in a case where a foreign auto-company
occupied a stand at a motor show in London where they
were represented by an agent with authority to make
contracts on their behalf, a service of summons on the
agent was held valid, although the show and the stand
were only for nine days.

b) RESIDENCE
Residence is generally the most important connecting
factor between a corporation and the governing legal
system, since in English Law it is on this factor that
liability to income tax chiefly depends. So, residence of
corporations is very important as the basis of liability for
income tax is residence, not domicil. It becomes
necessary to determine whether a foreign corporation is
resident in England. Residence depends upon control. A
company or corporation is regarded as resident in the
country where the centre of control exists, i.e.; the place
from where its affairs are controlled. The place of
incorporation is not at all decisive; it is only one of the
factors to be taken into consideration in determining
where the centre of control is located.
This test of control was laid down in the old case of
Cesena Sulpher Co. v. Mcholson, (1876, I Ex D, 428). In
this case the principle was established that the residence
of a corporation is situated at the centre of control of the
corporation’s affairs, even though that may differ from
the place of incorporation. Where control is divided
between two major offices, a company could have two
residences.
c) DOMICIL
Questions concerning the status of a corporation i.e., a
body of persons associated together for some enterprise,
including the fundamental question whether it possesses
the attribute of legal personality, must on principle be
governed by the same law that governs the status of the
individual ie: by the law of the domicile. What this law
provides has been stated in Gasque v. I.R.
Commissioners [1940, 2 KB 80] thus: Every person
natural and artificial acquires at birth a domicile or origin
by operation of law. In the case of the natural person it is
the domicile of his father, in the case of the juristic
person it is the country in which it is born. i.e., in which
it is incorporated. If it is an unincorporated association it
is treated as domiciled in the place of its registration or
creation. The domicile of corporation, thus, conferred
cannot be changed. A corporation throughout its
existence has only one domicil- the place of
incorporation. In short, A company is resident where its
control and management abide: it is domiciled where it
is incorporated.
Domicile is relevant for purposes of English income-tax
in the persons and corporations resident in the United
Kingdom but domiciled outside the UK are only liable to
be taxed on such income outside the UK as is actually
received in it. [Income Tax Act, 1918 of England]
d) NATIONALITY
Nationality is the condition or status of belonging to a
Nation or State, either by birth or naturalisation. It is a
membership of a particular nation or the fact or State of
belonging to a nation. Nationality, as compared with
domicile, enjoys the advantages that it is relatively easy
to understand as a concept and normally it is easily
ascertainable.
In Daimler Tyre Co. v. Continental Tyre Co. [1916 2 AC
30] it was held that nationality of a corporation depends
not on the nationality of the directors and shareholders,
but on the place of corporation. On the other hand,
whether the character of enemy nationality in time of war
attaches to a corporation deprnds on the character
attributed to the controlling officers.
In determining the liability of property of a corporation
to seizure as enemy property however, the character of
the individual share-holders as ignored; the separate legal
personality of corporation itself is the decisive
consideration.
In Bank Voor Handel v. Statford, [1951 2 ALL ER 779],
a bank incorporated in the Netherlands held assets in
England. All the shares in the bank were owned by a
Hungarian National. It was held that the assets of the
bank were not enemy property by reason only of the
enemy character of the sole shareholder.
ILE
MEANING
According to Tomlin’s Law Dictionary, ‘Domicile’ is the
place where a man has his home.
As per Halsbury’s laws of England. “A person’s
domicile is that country in which he either has or is
deemed by law to have his permanent home. Domicile is
generally identified with home, but whereas a person
may have no home or more than one, law requires him to
have a domicile and one only”.
Domicile is the status or attribution of being a lawful
permanent resident in a particular jurisdiction. But
domicile cannot be equated with home in the popular
sense.
The early concept of domicile was linked with the place
where the person had his permanent home. Therefore the
basic fact from which conception of domicile is evolved
has reference to the place where the person has his
permanent home. The concept of domicile has its origin
in the necessity to determine the system of law where by
his personal status of human being should be governed.
If, therefore, the place where the person has his
permanent home is a part of a particular country, the
system of law governing the personal status of a human
being in that country would be the system of law
whereby that person would also be governed. This result
is expressed also by stating that person has his domicile
in the country where he has his permanent home lies.
Hence, Cheshire states – “Domicile denotes the relation
between a person and a particular territorial unit
possessing its own system of law.”
Domicile is the concept employed by English law to
establish the legal relationship between an individual and
the legal system which in the view of English Courts can
most justly claim to constitute the personal law of that
individual. The adoption of domicile in English law as
the personal law of an individual is based on the sound
reasoning that the law of the community in which a
person lives and makes his home is the one most
appropriate to govern his personal status and relationship
as a permanent member of that community.
In the English private international law the concept of
domicile is different from the notion of permanent home.
A person can acquire a domicile at a place only if he
resides there permanently or indefinitely with an
intention to live there permanently and indefinitely.
Based on domicile is the principle of individual liberty,
an individual is free to establish his domicile at any place
in the world. The national boundaries are not a hindrance
in his choice of domicile. This implies that a person may
have his nationality in once country and domicile in
another. This also implies that though a person may be
stateless he cannot be without a domicile. He must be
domiciles at some place [Michael Anthony Rodrigues v.
State of Bombay and others, AIR 1956 Bom 729].
A marries B and establishes his matrimonial home at
Jaipur. After some time a son C is born to him. Jaipur is
the domicile of A , Jaipur is the domicile of B , as in
Indian law the domicile of wife is her husband’s
domicile. Jaipur is also the domicile of C, as C is
dependent of A. C’s domicile will remain Jaipur so long
as he remains a minor. If A changes his domicile, the
domicile of B and C also changes.
The 19th century witnessed the rise of nationalism on the
European continent and soon it began to be propagated
that law of nationality should govern all personal
matters. The arch protagonist of this view was Italy's
P.S.Mansini. In his famous speech of 1851, delivered at
the University of Turin, he propounded his thesis and
spoke with vigour and conviction in favour of law of
nationality. According to his thesis laws are made for an
ascertained number of people and not for a specified
area. The greatest responsibility of a sovereign is his
subjects. When laws are made, then not only the moral
and material qualities and needs of subjects but also the
climate and fertility of the land is taken into
consideration.
Important cases related to Domicile
In Ramsay v. Liverpool Royal Infirmary [(1910) AC
588], a person died leaving behind a will which formally
was valid under Scottish law, though invalid by law of
England. The testator was born in Glasgow in 1845 and
thus had a Scottish domicile of origin. From 1892 till his
death in 1927 he lived in Liverpool England. During
these 37 years he never went to Scotland. Only fact that
still connected him with Scotland was that he often said
that he was very proud to be a Glasgow man. As against
this, he on several occasions, refused to go to Glasgow.
He did not go to attend the funeral of his mother at
Glasgow and arranged for his own burial at Liverpool.
The House of Lords unanimously held that it was not
proved that he made Liverpool his permanent home and
therefore he continued to have his Scottish domicile of
origin.
In Jayaswal Shipping Company v. SS Leelavati [AIR
1954 Cal 415, 420], it has been held that “Domicil” is a
legal term whose contours have often been found to be
vague in jurisprudence. In England, the English and
Scottish domiciles are different. The existence of ‘one
system of law’ is a valid criterion for determining the
area of domicile. The whole of the Indian Union should
be regarded as the area of domicile where in ‘one system
of law’ prevails with Indian Parliament holding all
residuary powers of legislation in spite of the existence
of different State statutes on specified subjects.
General Principles or rules in respect of
Domicile
Under English and Indian Private International Law, the
following are the general principles/rules of ‘domicile’.
5. No person can be without a domicile
Every person must, at all times, possess a domicile. This
is based on the practical necessity of connecting every
individual with a system of law so that his legal relations
may be regulated. A person has freedom to change his
domicile but he has no freedom to be without a domicil.
(Udny v. Udny [(1869) LR 1 SC and Div. 441]). Even
when a person is actually homeless the law attributes a
domicile to him. Thus every person has a legal domicile.
In order to deal with a difficulty of ascertainment of a
domicile of persons who are either incapable of deciding
matters for themselves, such as young children, or who
are of a roving disposition. English Courts have
developed principles for the attribution of a domicile to
every person. Thus, the law assigns what is called a
domicile of origin of every person as his birth. The
domicile will stick to him till he adopts another domicile
so much so that if a person leaves his country of origin
with an intention to live in another, nevertheless his
domicile of origin adheres to him until he actually
acquires another (Kedar Pandey v. Narayan Bikram [AIR
1966 SC 160]).
On his birth a person acquires the domicile of his father
in case he is a legitimate child and domicile of his
mother in case he is illegitimate.
6. No person can have simultaneously two domiciles
A person cannot have at the same time more than one
operative domicile. It is because law in fixing domicile
of a person connects him with a system of law and if a
person is allowed to have more than one domicile that
purpose will be frustrated (Udny v. Udny [(1869) LR 1
SC and Div. 441]). Since the object of the law is insisting
that no person shall be without a domicile is to establish
a definite legal system by which certain of his rights and
obligations may be governed, and since the facts and
events of his life frequently impringe upon several
countries, it is necessary on practical grounds to hold that
he cannot possess more than one domicile at the same
time.
The Indian Constitution recognizes only one domicile
(Pradeep Jain v. Union of India [AIR 1984 SC 1420]), It
is exceptionally possible for a person to have two
domiciles, such as when a person may retain his domicile
of origin and may also acquire a domicile of choice.
Some countries recognized dual domicile.
7. Domicile denotes connection with a territorial
system of law
The English conception of domicile is based on a
person’s relation with a territorial legal unit, and no
consideration of personal law resulting from adherence
to a religious set.
The rule about domicile is evolved on account of the
universal recognition the questions affecting the personal
status of a human being should be governed constantly
by one and the same law, irrespective of where he may
happen to be or where the facts giving rise to the
question may have occurred.
In some countries it may happen that laws relating to
succession and marriage might not be the same all over
the country, and that different area in the State might
have different laws in respect of these matters. In that
case, each area having a distinct set of laws would itself
be regarded as a country for the purpose of domicile.
In a country like United Kingdom, domicile of United
Kingdom has no meaning. A person is either domiciled
in England, Wales or Scotland. The same is true about
the United States, Canada, and Australia. In India the
position is different. A person may be domiciled in India.
But that would not be enough. It would also be necessary
to find to which community he belongs, as in India
personal laws differ from community to community.
8. Presumption is in favour of continuance of an
existing domicile
In both the Indian and the English private International
laws there is a presumption in favour of the continuance
of an existing domicile. The burden of proving a change
lies in all cases on those who allege that a change of
domicile has taken place (Casdagli v. Casdagli [(1919)
A.C. 145]). This presumption may have a decisive effect,
for if the evidence is so conflicting or indeterminate that
it is impossible to elicit with certainty what the residents
intention is, the court will decide in favour of the existing
domicile.
The House of Lords, in Winans v. A.G [(1904) AC 287]
took the view that the domicile of origin continues to
exist till the end.
Distinction between Domicile and Nationality
1. ‘Nationality’ is membership or condition or status of
belonging to a State of Nation, either by birth or
naturalization whereas ‘domicile’ is the permanent place
or dwelling or home of the person concerned.
2. Nationality depends apart from naturalization, on the
place of birth or on parentage; domicile is constituted by
residence in a particular country animo manendi.
3. By virtue of which a person becomes the subject of
some particular country, binding him by the tie of natural
allegiance is considered by his political status or
nationality, while by virtue of which he enjoys the
character of a citizen of some particular country as such
is possessed of certain municipal rights, and subject to
certain obligations is considered as his civil status or
domicile. The civil status of a person is, thus, governed
universally by one single principle viz., that of a
domicile.
THREE KINDS OF DOMICIL
There are three kinds of domicil-
iv. Domicile of origin
v. Domicile of choice, and
vi. Domicile of dependence
II. DOMICILE OF ORIGIN
Domicil of origin is assigned by law to a child when it is
born. In other words it is the domicil which is
communicated to a person by operation of law at the
time when that person is born.
A domicile of origin is that which every infant has upon
attaining majority, being the domicile of parent at that
time. Domicile of origin is also called ‘Domicile of
Nativity’ as every person at birth acquires a domicile of
origin. It continues to exist so long as he/ she does not
acquire another domicile. The moment a person gives up
his domicile of choice, his domicile of origin revives
(Harrison v. Harrison [(1953) 1 W.L.R 865]). Since
domicile of origin is attributed to every person at birth by
operation of law, the basis of domicile of origin is
paternity or maternity.
According to English Private international law a
legitimate child born during the lifetime of father has his
domicile in the country in which his father was
domiciled at the time of his birth. A legitimate child born
after the death of his father has domicile in the country in
which the mother was domiciled at the time of his birth
(Somerville v. Somerville [(1801) 5 Ves. 750]). The
domicile of origin is not dependent upon the place where
a child is born, not on the place where its father or
mother reside, but on the domicile of the father or
mother, as the case may be.
Domicile of origin is a creature of law and no person can
give it up totally. For the revival of the domicile of the
origin it is necessary that the domicile of the choice
should be abandoned voluntarily.
In an Indian case, Sankaran Horindan v. Lakshmi Bharti
[AIR 1964 Ker. 244], One Krishnan domiciled in India
went to England for higher education in 1925. After
some time his parents declined to give him any further
financial support. With the help of an English friend,
Miss Hopeworth he completed his studies in 1939 and
set up his private practice in medicine in Sheffield. He
earned a fortune. He purchased a mansion in Sheffield
where he shifted his practice. In 1950 Krishnan died in
England. Krishnan lived in England for 30 years and
during this period he not for once he came to India. But
in his letters to his friends he expressed his intention of
returning to India. On these facts the Kerela High Court
came to the conclusion that Krishnan did not abandon his
domicile of origin.
DOMOCILE OF CHOICE
Any independent person may acquire a domicile of
choice. Whether a person has capacity to acquire a
domicile of choice is determined by the law of his
existing domicile. For the acquisition of domicile of
choice the following two conditions must be satisfied:
1. Residence in the country of domicile of choice
2. Intention to live in the country of domicile of choice
permanently (Gour Gopal v. Sipra Roy [AIR 1978 CAL.
163])
“Residence” is an elastic term of which no exhaustive
definition is possible. A man’s residence is prima facie
evidence to show that he is domiciled there. But
residence, however long, cannot be the sole criterion of
domicile.
The word ‘residence’ has a time element in it, but it does
not necessarily mean that a person must have been
residing in the same home or at the same place for a
considerably long period. If a person leaves the place of
his present domicile with a view to settle in another
country, then the moment he sets his foot in that country
he acquires a domicile there (Matalon v. Matalon [(1952)
p. 233]).
Residence (long or brief) + requisite intention =
Domicile
Ramsay v. Liverpool Royal Infirmary, [1930] SC (HL)8-
“ In order to acquire domicile one has to go through
qualitative as well as quantitative test”
“Intention” is an intangible fact. It is an act of mind and
like other mental acts, it is difficult to prove. For the
purpose of acquisition of domicile the intention to reside
at a place or in a country should be to reside there
permanently or for an unlimited time. The intention must
be fixed and not fickle and must be directed towards one
particular place or country.
A person ‘A’ who leaves the country of his domicile of
origin with a view to settle in country X, Y, or Z does not
have an intention to acquire domicile in any one of these
countries. But a person who decides to spend the rest of
his life in a country X is a person who acquire domicile
in that country.
 Residence
Residence is a wide term of which no exact definition is
possible ‘Domicile’ may mean place where a person eats,
drinks and sleeps or where his family or servants eat,
drinks and sleeps. It has also been construed to mean
‘dwell permanently or for a considerable time.
Residence in a country is prima facie evidence of
domicile, the presumption of domicile in favour or
residence becomes stronger with the length of residence.
However, mere long residence is not enough for
acquisition of domicile, nor does the brief residence
negative domicile.
A person may be resident in a country even though he is
living in hotel and staying there for a particular purpose
e.g., for conducting business, taking part in legal
proceeding, etc.
If a person leave the place of his present domicile with a
view to settle in another country, then the moment he set
his foot in that country he acquires a domicile there.
 Intention
The acquisition of domicile of choice taken when a
person resides in a country with an intention of
remaining there permanently. Intention is an intangible
fact. It is an act of mind and it is difficult to prove.
For the purpose of acquisition of domicile intention to
reside at a place or in a country should be to reside there
permanently or for an unlimited time. The weight of
authority in English law defines the mental element
necessary for the acquisition of a country of residence.
It is clear that a conditional intention will not sufficient.
In Cramer v. Cramer, (1987) 1 FLR 116, a women with a
French domicile of origin who came to England
intending to remain here and marry an English man, who
was already married, did not acquire an English domicile
of choice. Here intention to remain was conditional on
both herself and her proposed husband obtaining
divorces and on their relationship continuing.
The intention must be bona fide in the sense of being
genuine and not pretended for some other purpose, such
a getting a divorce to which one would not be entitled by
the law of the true domicile.
Distinguish between domicile of origin and Domicile
of choice
When compared, following are the differences between
the domicile of origin and domicile of choice:
1. The domicile of origin comes into existence by
operation of law, independently or violation of a person
and every person gets it on birth on the other hand, the
domicile of choice is a domicile which is acquired by the
free volition of the person concerned.
2. There is the strongest possible presumption in favour
of the continuance of domicile or origin. As contrasted
with a domicile of choice its character is more enduring,
it holds stronger and less easily shaken off. In fact,
almost overwhelming evidence is required to shake it off.
3. Domicile of origin cannot be abandoned easily as done
in the case of domicile of choice. Since the domicile of
origin is a creature of law and not of free will, domicile
of origin cannot be lost by mere abandonment.
4. If the domicile of origin is displaced as a result of the
acquisition of domicile of choice, the rule of English law
is that it is merely placed in abeyance for the time being.
DOMICILE OF DEPENDENTS [Domicile of
dependence by persons under disability]
The domicile of dependence, or the domicile conferred
on persons legally dependent is one which arises by
operation of law. It applies particularly to children and
mentally disordered persons and married women.
 Domicile of Minor Children/infants
A child’s domicile of origin
A child acquires at birth a domicile of origin by
operation of law viz., if legitimate and born in his
father’s lifetime, the domicile of his father, if illegitimate
or born after his father’s death, the domicile of his
mother. A foundling is domiciled in the country where he
is found.
Domicile of minor
For the purpose of domicile the minority in Indian law
continues till a person attains the age of 28 years, while
in English law, under Section 3 of the Domicile and
Matrimonial Proceedings Act, 1973, minority terminates
on the attainment of 16 years or on marriage.
 Domicile of Lunatics or mental disorder or
mental incapacity
Although there is no direct authority it is generally
argued that the domicile of a lunatic person cannot be
changed either by himself or by the person to whose care
he has been entrusted. Thus it seems that the lunatic will
retain the domicile which he had when he became lunatic
even if he goes to another country and settles there.
 Domicile of Married Women
In English law, a married woman is to be treated as
capable of acquiring a separate domicile; though in the
vast majority of cases she and her husband will,
independently, acquire the same domicile. It is quite
possible for happily married spouses to have separate
domiciles.
In the Indian law, section 15 and 16 of Succession ACT,
1925 provides the general rule thus; on marriage the wife
acquires the domicile of her husband and during
covertures her domicile is the domicile of her husband.
Then it is laid down that wife can acquire her own
domicile in the following two cases:
2. If the wife is living separate under a decree of the
court, or
2. If the husband is undergoing a life sentence.
PRESENCE, RESIDENCE, DOMICIL AND
NATIONALITY OF CORPORATIONS
A corporation is a body corporate legally authorized to
act as a single person. It is an artificial person established
for prescribing in perpetual succession certain rights,
which, if conferred on natural person, would fail in
process of time. It is an artificial being invisible,
intangible and existing only in contemplation of law.
e) PRESENCE
We have seen that an English Court gets jurisdiction over
a person by his mere presence. The same principle
applies to artificial persons like corporations. It is not
necessary that a corporation should be resident or
domiciled or incorporated within the jurisdiction. The
question therefore is when a corporation can be said to be
present with the jurisdiction. The answer is “by doing
business”. The only way in which an artificial entity can
show its presence is by the transaction of business. The
business must have been done in England not merely
done with England. This is ascertained by examining
whether an agent has been employed in England with
authority to enter into transactions binding upon the
corporation. If he only receives offer in England which
he transmits abroad for acceptance, there is no business
done in England. It is also necessary that the agent must
have operated at a fixed place of business for a definite
period of time, it does not matter that the place of
business is temporary or that the time of business is very
short. Thus in a case where a foreign auto-company
occupied a stand at a motor show in London where they
were represented by an agent with authority to make
contracts on their behalf, a service of summons on the
agent was held valid, although the show and the stand
were only for nine days.

f) RESIDENCE
Residence is generally the most important connecting
factor between a corporation and the governing legal
system, since in English Law it is on this factor that
liability to income tax chiefly depends. So, residence of
corporations is very important as the basis of liability for
income tax is residence, not domicil. It becomes
necessary to determine whether a foreign corporation is
resident in England. Residence depends upon control. A
company or corporation is regarded as resident in the
country where the centre of control exists, i.e.; the place
from where its affairs are controlled. The place of
incorporation is not at all decisive; it is only one of the
factors to be taken into consideration in determining
where the centre of control is located.
This test of control was laid down in the old case of
Cesena Sulpher Co. v. Mcholson, (1876, I Ex D, 428). In
this case the principle was established that the residence
of a corporation is situated at the centre of control of the
corporation’s affairs, even though that may differ from
the place of incorporation. Where control is divided
between two major offices, a company could have two
residences.
g) DOMICIL
Questions concerning the status of a corporation i.e., a
body of persons associated together for some enterprise,
including the fundamental question whether it possesses
the attribute of legal personality, must on principle be
governed by the same law that governs the status of the
individual ie: by the law of the domicile. What this law
provides has been stated in Gasque v. I.R.
Commissioners [1940, 2 KB 80] thus: Every person
natural and artificial acquires at birth a domicile or origin
by operation of law. In the case of the natural person it is
the domicile of his father, in the case of the juristic
person it is the country in which it is born. i.e., in which
it is incorporated. If it is an unincorporated association it
is treated as domiciled in the place of its registration or
creation. The domicile of corporation, thus, conferred
cannot be changed. A corporation throughout its
existence has only one domicil- the place of
incorporation. In short, A company is resident where its
control and management abide: it is domiciled where it
is incorporated.
Domicile is relevant for purposes of English income-tax
in the persons and corporations resident in the United
Kingdom but domiciled outside the UK are only liable to
be taxed on such income outside the UK as is actually
received in it. [Income Tax Act, 1918 of England]
h) NATIONALITY
Nationality is the condition or status of belonging to a
Nation or State, either by birth or naturalisation. It is a
membership of a particular nation or the fact or State of
belonging to a nation. Nationality, as compared with
domicile, enjoys the advantages that it is relatively easy
to understand as a concept and normally it is easily
ascertainable.
In Daimler Tyre Co. v. Continental Tyre Co. [1916 2 AC
30] it was held that nationality of a corporation depends
not on the nationality of the directors and shareholders,
but on the place of corporation. On the other hand,
whether the character of enemy nationality in time of war
attaches to a corporation deprnds on the character
attributed to the controlling officers.
In determining the liability of property of a corporation
to seizure as enemy property however, the character of
the individual share-holders as ignored; the separate legal
personality of corporation itself is the decisive
consideration.
In Bank Voor Handel v. Statford, [1951 2 ALL ER 779],
a bank incorporated in the Netherlands held assets in
England. All the shares in the bank were owned by a
Hungarian National. It was held that the assets of the
bank were not enemy property by reason only of the
enemy character of the sole shareholder.