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DOMICILE OF DEPENDENCY UNDER PRIVATE INTERNATIONAL LAW

PRIVATE INTERNATIONAL LAW

Dr. P.R. KALIDHASS

CHANDRIKA CHOUDHARY

ROLL NO.: 2013038

9TH SEMESTER

OCTOBER 2017

ACKNOWLEDGEMENT

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I would like to express my special thanks of gratitude to my teacher Dr. P.R.
KALIDHASS, who gave me the golden opportunity to do this project on
DOCTRINE OF DOMICILE UNDER PRIVATE INTERNATIONAL LAW, which
also helped me in doing a lot of research and I came to know about so many new
things I am really thankful to them.

Secondly I would also like to thank my parents and friends who helped me a lot in
finalizing this project within the limited frame. I want to convey a most sincere thanks
to my concerned faculty for helping me throughout the project without whose
exorbitant support this project would not have become a reality.

TABLE OF CONTENTS

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 TOPIC PAGE NO.

ABSTRACT 4-6

INTRODUCTION 7-8

DOMICILE OF DEPENDANTS 8-9

MARRIED WOMEN 10-12

MINOR CHILDREN 13-15

LUNATICS 16

CONCLUSION 17

REFERENCES 18

CHAPTER-I

ABSTRACT

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This project is done to assess the quality of the value of the doctrine of domicile under
the Private International Law that is conflict of laws.
Private International law is that part of law of a country which deals with cases having
a foreign element. It is therefore that part of law that comes into play whenever the
issue before the affect some events/ facts/ transactions that are so closely connected
with a foreign system of laws as to necessitate recourse to that system.
The law pertaining to where a person intends to make his permanent home is subject
to a lot of argument. No wonder domicile has been said to be easier describe than to
define. There are indications from both local and foreign journals which indicate that
there are conflicting understandings in the area of domicile.
Under the private international law, the concept of domicile has several as well as area
of applications, some of which include the acquisition and loss of domicile of choice,
origin and dependence.
This project will dealt with the various definitions of domicile, the distinctive feature
of each type of domicile, their workings, variations and also their shortenings.

AIMS AND OBJECTIVE OF THE STUDY- By the study of this project we will
understand the whole concept of domicile of dependency under private international
law and how the cases related to domicile is solved when the cause of problem is in
any other country, then what all situations has to be followed and how the domicile of
dependency can be used effectively to solve the issues related to domicile.

RESEARCH QUESTIONS-

1. Whether the married woman has the option to choose the domicile of his
choice?

2. Whether the lunatic has the right to choose their domicile when they are in
their stable state of mind?

3. Whether the children who are above the age of 18 yrs have the right to choose
domicile of his choice?

HYPOTHESIS- The procedure followed for the choice of domicile is tend to change
time after time. With the recent developments in the law the procedure to acquire
domicile of his/her choice for various reasons is changing.

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RESEARCH METHODOLOGY- For this project the research methodology is
doctrinal. The information and the data for the project will be from various books on
private international law, articles and other primary and secondary sources. The
research will also include the case laws to explain the topic more clearly.

LITERATURE REVIEW-

BOOKS REFERRED-

1. James Fawcett, Janeen Carruthers, Peter North, Cheshire, North and Fawcett:
Private International Law, Oxford University Press,(Paperback), 14th Edition
2009.

This book is a treasure trove for the diligent student and given the level of detail and
analysis which it contains. The book is invaluable in the field of basic principles of
private international law and there are also various aspects of domicile, family law in
private international law and the law of property including administration of estates,
succession and trust.

2. Dr. S.R. Myneni, Private International Law, Asia Law House, (Paperback),
1st Edition 2014.

This book gives us a summary of principles of private international law and the
various aspects related therewith. The researcher deals with the final section of the
book which analysis the reality of domicile in the present scenario and the emerging
legal approaches to resolve the same.

RESEARCH DESIGN- The researcher would adopt Chapterisation method for the
following paper.

1. CHAPTER 1: It deals with the abstract and the research questions along with
the research methodology of the project and the sources from which the
researcher has gone through to conclude the research.

2. CHAPTER 2: It defines the introductory part of the project in which the

definition as well as the historical background and the present scenario is
discussed.

3. CHAPTER 3: It describes about the domicile of married women and how the
married women can choose her domicile after divorce.

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 4. CHAPTER 4: It describes about the domicile of natural children, domicile of
adopted children and domicile of children after the death of their parents.

5. CHAPTER 5: It describes about the domicile of Lunatics.

6. CHAPTER 6: It states the opinion that is being formed after the research.

7. CHAPTER 7: It deals with the list of books referred in the project and
contains the history or systematic description of books, their authorship,
printing, publication, edition, etc.

CHAPTER-II

INTRODUCTION-

It has been universally recognized that 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 of where the facts giving rise to the question may have

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occurred. But unanimity goes no further, there is disagreement on two matters. What
is the scope of this personal law, as it is called and should its criterion be domicile or
nationality?1 In England, however it has long been settled that question affecting
status are determined by the law of the domicile of a person and that broadly speaking
such questions are those affecting family relations and family property. To be more
precise, the following matters are to a greater or lesser extent governed by the
personal law: the essential validity of marriage; the effect of marriage on the
proprietary rights of husband and wife; jurisdiction in divorce and nullity of marriage,
though only to a limited degree; legitimacy, legitimating and adoption, wills of
movables and intestate succession to movables.

The concept of domicile however, is not uniform throughout the world Domicile
known as habitual residence to some and permanent residence to some people. 2
Though the common law variant may seem very simplistic, there are two variant of
the Domicile Theory, they are Domicile of Origin and Domicile of choice. Domicile
of Origin is communicated through operation of law to each person at birth, i.e.,
domicile of the father or the mother, dependent on the legitimacy of the offspring.
Domicile of Choice is that domicile that any person of full age is free to posses
instead of the one he already possesses. The English rule is marred by rules that are
very complex, and often leads to uncertainty in its outcome.

There are five general rules that apply to the concept of Domicile they are-

1. No person shall be without domicile. To bring into effect this rule the law
assigns to every person a domicile of origin to every person at birth, namely to
a legitimate child. The domicile of the mother to an illegitimate child and to
founding place where the child is found.

2. A person can never have two domiciles. This is to ensure that several factors
and domiciles dont hurt his life. Therefore for practical reasons it is necessary
that a person should not posses more than domicile.

3. The fact that a domicile might signify a connection with a single system of
law, but the same law might not apply uniformly to all the classes of that
people of that particular domicile.
1
Cheshire and Norths- on the merits of nationality and domicile in pp165-167 of Private International
Law.
2
Whicker vs Hume[1858] 7 HL Cas 124 at 160

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 4. There is always a presumption that a domicile is ever continuing, the burden
of proof lies on the porosities to prove that it has changed. This factor may
have a decisive effect on his case, as the law applied will change drastically.

5. Subject to other statutory exceptions the concept of domicile shall always be

decided according to the English concept notwithstanding any other foreign
concept of law.

DOMICILE OF DEPENDANTS-

Minors, married women and mentally disordered persons, such as idiots and lunatics,
fall in the category of dependents. In respect of domicile the word Dependent is
applied to a person in general who is incapable of having a domicile of his choice.
The general rule is that a dependant person has the domicile of the person he is
dependent on. The domicile dependency, as it sometimes is called, is an imposed
domicile and it changes only when the person on whom the dependent is dependent
changes his domicile. A dependent person cant abandon his dependency. Thus, a wife
who lives separately from her husband, a minor who ran away from his parents and a
lunatic who lives in another country cannot claim a domicile of their own. It is only in
one case that a dependent can get a new domicile. This happens when a female minor
marries. But then what she acquires is the domicile of her husband. Where the person
on whom they are dependent on dies or if they have no one to depend on, then the
dependents domicile cannot change at all. These statements of law in respect of
English law have to be read subject to certain qualifications, since the Domicile and
Matrimonial Proceedings Act, 1973 had made some changes relating to married
women and minor children.
Under English private international law, the capacity to acquire new domicile is
governed by English law and not by the law of the previous domicile or by law of the
intended new domicile.3 There are basically three classes of dependents, viz., minors,
married women and mentally disordered persons.

3
Re Beaumont, (1893) 3 Ch 490

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 CHAPTER-III
MARRIED WOMEN-
In Gray v Formosa4, a rule was underlined that domicile of a married woman is,
during covertures, the same as, and changes with the domicile of her husband, this
was the basic common law principle of unity of the person of husband and wife.
According to Blackstone, By marriage, the husband and wife are one person in law,
i.e., the very being and legal existence of woman is suspended during the marriage, or
at least is incorporated and consolidated into that of husband, under whose wing of
4
(1963), P. 259

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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 acquires by the marriage. This rule is also expressed by saying that the
husbands actual and the wifes legal domicile are one, wherever the wife maybe
residing. By a valid marriage, the domicile of the wife becomes that of the husband,
and the fact that married couple is living apart under separate agreement, or a husband
has deserted the wife, does not render her free to choose a domicile apart from his.
If the marriage is void, the wife does not acquire the domicile of her husband.5 But if
she goes to another country and lives with a putative husband, she may acquire a
domicile of choice there.6 But if the marriage is void on the ground that she was
already a wife of someone, she cannot acquire a new domicile. Then her domicile will
remain that of her lawful husband.7
The rule that the wifes domicile is tagged with that of her husband has been severely
criticized.8 It is evident that in our contemporary world this is socially most
undesirable. Attempts to round of its sharpest corners have been statutory. The
Domicile and Matrimonial Proceedings Act, 1973 has now repealed the old
provisions, and a wife is now allowed her own separate domicile. New jurisdictional
rules have been laid down. Thus the English law had gone much ahead of the
suggestion of the Private International Law Committee that a wife was living
separately under a decree of judicial separation should be allowed to acquire an
independent domicile.
The Domicile and Matrimonial Proceedings Act, 1973 makes fundamental changes in
the domicile of the wife. The rule of unity of domicile of husband and wife stands
abolished. The act lies down that the wife does not acquire the domicile of her
husband merely by virtue of her marriage. Now her domicile is to be ascertained the
same way as the domicile of an independent person is ascertained. Section 1(1) lays
down: the domicile of a married woman as at any time after the coming into force of
the section shall, instead of being same as her husbands by virtue of only if marriage,
be ascertained by reference to the same factors as in the case of any other individual
capable of having an independent domicile. The Act came into force on Jan 1 1974.

5
White V White, (1937), P. 111; Mehta V Mehta, (1945) 2 All. E.R. 690; De Reneville v De Reneville,
(1948), P.100 (C.A).
6
Von Lorang v Adm. Of Austrian Property,(1927) A.C. 641
7
Shaw v Gould, (1868) L.R. 3 H.L. 55.
8
Graveson, 176-77; Wolff, 122; Cheshire, 167.

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A woman already married on Jan 1, 1974, retains her husbands domicile of
dependency, till she acquires another domicile. Sub section(2) provides, Where
immediately before this section came into force, a woman was married and then had
her husbands domicile by dependence, she is to be treated as retaining the domicile
in. Unless and until it is changed by acquisition or revival of another domicile either
on or after the coming into force of this section.9
In Indian statutory law also does not follow English law. The Indian Succession Act
1925, ss. 15 and ss. 16 incorporate the general rule: 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
cases:
1. If the wife lives separate under a decree of the court.
2. If the husband is undergoing a life sentence.10
Indian courts have been called upon to dwell in the matter in the several different
situations like in the case of Prem Pratap v Jagat Pratap 11. Here it was held that the
wifes domicile remains that of the husband even if he deserts her. Then was the case
of Rani Saeeda Khautan v State of Bihar12 in the wake of partition. The wife of one
Capt. Kumar Singh domiciled in India, left with her mother to Pakistan. On 14 th May
1950 she visited India on a permit issued by the Indian Commission in Pakistan. On
23rd July 1950 she was served with a notice of the Government of India to quit India.
In a petition for a writ of mandamus it was argued on behalf of the wife that she,
being the wife of Indian domiciled person, was domiciled in India and thus, cannot be
asked to quit India, since by going to another country or by any other act of her she
could not, during her marriages subsistence acquire any domicile of her own. Her
plea was accepted by the Patna High court. Substantially the Allahabad High court
also accepted the plea of the wife. Justice Mallick, referring to s.16, Indian Succession
Act, 1925 said that during the subsistence of covertures in the domicile of the wife is
the domicile of her husband.13
It is quite unfortunate to observe that the courts in India tend to blindly follow their
English counter-parts; it is like the persuasive decisions are getting more importance.

9
IRC V Dichess of Portland, (1982) 2 W.L.R. 367.
10
R. Dolphin v Robins, (1859) 7 H.L.C. 390
11
1944 All 97
12
1951 Pat 454
13
Smt. Allabandi v Union of India,1954 All. 457

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Even though English precedents are being quietly followed, American decisions arent
given much importance. Our courts should have at least extended the principle of
separate domicile to those cases where husband and wife are living separate, or the
husband has deserted the wife.

CHAPTER-IV
MINOR CHILDERN-
For the purpose of domicile the minority in Indian law continues till a person attains
the age of 18years while in English law, under s.3 of the Domicile and Matrimonial
Proceedings Act, 1973, minority terminates on the attainment of 16 years.
Domicile of natural children- in respect of natural childrens domicile, the
established rules of private international law are-
a) The domicile of a legitimate minor children, if parents have not separated
during minority.

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 Is the domicile of the father as long as the father is alive and it changes
with the domicile of the father,
After the death of the father it is the domicile of the mother so long as
the mother is alive and it changes with the domicile of the mother.
b) The domicile of an illegitimate child during minority is the same as that of the
mother and changes with the domicile of the mother.
c) The domicile of a minor orphan cannot be changed, and
d) When the minor attains majority he can change his domicile.14
Indian law is slightly different from English law in this aspect. Indian law recognizes
three exceptions when minors domicile does not follow that of his parent:
a) If the minor is married,
b) If the minor holds any office or employment in the service of Her Majesty, or
c) If the minor has set up, with the consent of the parent, any distinct business.
Both English and Indian private international law a child on attaining majority can
acquire his own domicile.15

Adopted Children- In English private international law there is yet no authority in

the domicile of adopted child. The Private International Law Committee suggests that
the rule in America should be followed i.e. the adopted child should have the domicile
that his adopted parents has. In Indian law, the authority was given by Madras High
Court that the domicile of the adopted child is the domicile of the adopting parents
and change with the change in the domicile of the adopting parents. 16 On marriage the
adoptive mother acquires the domicile of her husband. If the mother does not take the
child with her, then the child retains the domicile that it had before the marriage of his
mother. In case the child is taken care of by the step father and goes to live with his
adopted mother and step father, domicile of the adopted child changes with the
mother.

Domicile of Minor child after the death of Parents- In English private international
law the domicile of a legitimate child, after the death of the father is the domicile of
the mother and changes with the domicile of the mother, provided that the child is
living with his mother. However this change of domicile is not automatic. Under the
Indian law the domicile of the legitimate minor child is in the country in which his

14
Dicey and Morris, Rule 12, p.110; Cheshire, 176
15
Michael Anthony Rodrigues v State of Bombay, 1956 Bom 729
16
(1929) 30 M.L.W. 691

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father was domiciled at the time of his death. The Indian law does not say that the
domicile of the child whose father is dead will be that of his mother. It is like Indian
law fixes the domicile of a legitimate child with that of the father and that of an
illegitimate child with his mother. If the father or mother dies then the domicile of the
child remains the same as it was at the death of the parent.
In our contemporary world every act of guardianship is weighed on the scales of
welfare of children. It is submitted that the rule should be that the domicile of an
orphan child may be changed by his guardian with the prior permission of the court in
the country in which the child is domiciled and further that no court will accord such
permission unless it comes to the conclusion that the change would be for the welfare
of the child.

Domicile of the child when the parents have separated- If parents are living
separately, legally or otherwise have obtained a decree of judicial separation then the
question arises as to the domicile of the child. According to the Domicile and
Matrimonial Act, 1973the domicile of the child continues to be that of the father
unless the following things happen:
1. When the child is living with his mother and is not with his father,
2. If he has acquired the domicile of his mother by virtue if his having lived with
her, then he will continue to have that domicile, even when he leaves his
mother, provided he is not living with his father, and
3. The child will continue to have his mothers domicile even after the death of
his mother, if he has acquired his mothers domicile by virtue of his having his
home with his mother, and not with his father.
It is apparent that in the two latter cases, if the child lives with his father and makes
home with him, the child will acquire the domicile of his father. It is to be noted that
in case of separation the child does not live with his mother, then he continues to have
the domicile of his father even if he is not living with his father like living with some
relative or local authority or even if the situation is such that the father is not known.
Indian law has no answer to such a situation. It is submitted that the child will have
the domicile of the parent in whose custody he is living, wither under an order of the
court or de facto, and t should be that parent who should have the right to change the
domicile of the child. In case of disputes between parents, the interest of the child is
the paramount consideration.

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Domicile of Married Minor children- Before January 1, 1974, the position in
English law was that a minor child on marriage retained the domicile of his father or
mother, i.e., its original domicile of dependency, while the minor child acquired the
domicile of her husband. Now under Domicile and Matrimonial Act, 1973, the
position is that a minor child attains capacity to acquire independent domicile on
marriage, applying to both males and females. The Indian law is still stuck to the
situation before January 1, 1974. The domicile of a female minor on her marriage
changes on her marriage to the domicile of her husband.17 It is seen that if the husband
is minor and thus, has a domicile of dependency of either the father or mother, then
the domicile of the minor married female child will be the same as that of her husband
and will change with the change in the domicile of her husband. Even when she
becomes a widow while being a minor, her domicile will be that of her husband had
when he died. She cannot acquire back her pre-marriage domicile of origin. Even
when the minor widow becomes a major she would continue to have the domicile of
her dead husband, unless she acquires a domicile of her choice.

CHAPTER-V
LUNATICS-

In English private international law there is no direct authority on the domicile of

lunatics. It seems that an independent person who becomes insane cannot change his
domicile, as he is incapable of exercising his will. It seems that even his guardian
cannot change it. Thus it seems that the lunatic will retain the domicile which he had
when he became a lunatic (i.e. when he began to be legally treated as insane) even if
he goes to another country and settles there. 18 In the modern English law lunacy is
categorized on the basis of degrees of mental disorder.
It is submitted that if they have sufficient ability to form the necessary intention, they
should be able to change their domicile. It is also submitted that those who are kept
under guardianship should also be able to acquire new domicile, if their guardianship
thinks it is proper to do so. The guardian court or the court of protection should be

17
Section 15, Succession Act, 1925
18
Urquhart v Butterfield, (1887) 37 Ch. D. 357; Hepburn v Skirving, (1861) 9 W.R. 764

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able to accord permission to the guardian to do so whenever it is thought to be in the
interest of the child.
In Indian law we have a statutory provision in s.18, Indian Succession Act, 1925
which runs: An insane person cannot acquire a new domicile in any other way than
by his domicile following the domicile of another person. The Act does not specify
who this another person is. But it seems clear that if the lunatic is a minor then it is
the parent on whom he is dependent and if lunatic is a married woman, then it is her
husband. It is submitted that if the lunatic is a major and has a guardian, then this
another person should be guardian of the lunatic. There is no reason why Indian
courts should follow the old English decision in Urquhart v Butterfield 19which lays
down that a major lunatics domicile remains static, i.e., it remains the same as it was
at the time when he legally began to be treated as insane.

CHAPTER- VI

CONCLUSION-

Domicile is the most significant connecting factor in conflict of laws. It has a

dominating role in family and matrimonial property law and a role in other areas such
as capacity of persons to make contracts. It plays a part also in the law of taxation.

Domicile is an idea of law. Domicile is the status or attribution of being a lawful

permanent resident in a particular jurisdiction. A person can remain domiciled in a
jurisdiction even after he has left it, if he has maintained sufficient links with that
jurisdiction or has not displayed an intention to leave permanently, i.e., if that person
has moved to a different state but has not yet formed an intention to remain there
indefinitely.

Traditionally many common law jurisdictions considered a persons domicile to be a

determinative factor in the conflict of laws and would, for example, only recognize a
19
(1887) 37 Ch. D. 357

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divorce conducted in another jurisdiction if at least one of the parties were domiciled
there at the time it was conducted.

Domicile of origin cannot be lost as such. Everyone is born with a domicile of origin,
which remains. Even when a domicile of choice is acquired, the domicile of origin
will remain as a resource to fill up any gap when a domicile of choice is abandoned.

A domicile of choice can be abandoned by a person when he or she ceases to reside in

a country and ceases to intend to reside there permanently or indefinitely. When a
domicile of choice is abandoned either a new domicile of choice is acquired, or the
domicile of origin revives by operation of law.

It should be noted that the most important factor in acquiring a domicile of choice is
intention. The act of moving may occur but most times it does not necessarily mean
that the person intends to move.

CHAPTER- VII

REFERENCES-

Books
1. Diwan, Paras & Diwan, Peeyushi, Private International Law (2nd ed., New
Delhi: Deep & Deep Publications, 1993)
2. Morris, J.H.C., North, P.M., Cases and Materials on Private International
Law (London: Butterworths, 1984)
3. North, P.M., Fawcett, J.J., Cheshire and Norths Private International
Law (12th ed., London: Butterworths, 1992).
4. VC Govindaraj, The Conflict of Laws in India, Oxford University Press, New
Delhi, 2011

Website
www.academia.edu
www.caaa.in
infotrackea.co.ke/files/

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