LAW RELATED TO DOMICILE IN INDIA
Chapter 2 of the Succession Act of India describes the Concept of Domicile. It basically has been envisaged for the determination of the civil status of an individual. But the term is confused sometimes either with nationality or with the residence.
This article explains the concept of domicile in India.
Roman Law is considered to be the mother of domicile in Common law. The general view about the term is ‘permanent home’ and it is defined by the case of
Lord Cranworth in Whicker v Hume
“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.”
IMPORTANCE OF DOMICILE
Domicile is important for certain reasons as follows:
- It is a connecting factor for various legal systems.
- It can be used as a jurisdictional link for the assumption of the jurisdiction and for recognition and assumption of a foreign court’s jurisdiction.
- It determines an individual’s certain rights like right to vote, right to hold public office, etc.
- A person can not be without a domicile because it is necessary to connect a person with some legal system to regulate his legal relations.
PRINCIPLES GOVERNING THE LAW OF DOMICILE
There are five fundamental principles which govern the law of domicile, they are as follows:
1) Nobody shall be without a domicile– By operation of law; a domicile of origin is assigned to every person at the time of his birth, i.e. to a legitimate child, the domicile of the father is assigned, to an illegitimate child the domicile of the mother is assigned, and to a foundling the domicile of place where he is found or discovered, provided nothing is contrary to it is present. This domicile of origin continues until a new domicile i.e. domicile of choice is acquired by the person.
2) A person cannot have two domiciles simultaneously.
3) Domicile connects a person with a single system of territorial law but it does not necessarily signify a system that prescribes the same principles for all the classes of persons, like in India versatile rules apply to varied categories of population according to their religion, race or caste.
4) There is a presumption in favour of the continuance of an existing domicile.
5) Under English Common Law System, Domicile of a person is to be determined according to the English concept of domicile and not in accordance with the foreign concept of domicile, subject to certain statutory exceptions
KINDS OF DOMICILE
Domicile of an individual is characterized as follows:
- Domicile by origin: Domicile vested with birth of an individual is said to be domicile by origin. There are three cases of domicile acquired by the origin. When a child takes birth, he is either legitimate, or illegitimate, or posthumous. Birth is the first medium through which a person gets in contact with law and environment. Domicile by origin is also called as domicile by birth.
According to Section 7 of the Succession Act of India, 1925, a legitimate child acquires the domicile of his father and a posthumous child acquires the domicile of the deceased father. And according to section 8 of the same act, an illegitimate child acquires the domicile of the mother at the time of his birth.
- Domicile by choice: On attaining the age of majority, one has the liberty to take and bear responsibilities. He also has the liberty to make his own choice of domicile. A person of a sound mind who is a majority by age can choose to acquire the domicile of a place of his choice when he voluntarily decides to live indefinitely in a place.
For an instance, if a person stays in India for one year and wishes to acquire the domicile of India, then he will have to make an official application in a prescribed manner to a designated government department expressing his desire. These instances of domicile by choice are governed by the provisions of Sections 9, 10, 11, 12, and 13 of the Succession Act of India, 1925.
- Domicile by Operation of Law: In this type, domicile of a person is determined by the domicile of another person. It is also called as a domicile by dependence. Three categories of people are recognized whose domicile has to classified by this type. Those are:
- A minor
- A married woman
- A person of unsound mind
Under the provisions of sections 14 and 17 of the Succession Act of India, 1925, the domicile of a minor including an adopted child is recognized who are dependent on the domicile of their parents. But there are some exceptions. A child’s domicile may be different from their parents, if:
- He is married
- He has set up a business with the consent of his parents
- He is under the service of the government of India.
The provisions of section 18 of the same act talks about the domicile of a person who are legally disabled, in particular, a person of an unsound mind, their domicile is dependent on their parents, guardians, or spouses, if married.
In the case of a married women, by the virtue of marriage, they acquire the domicile of their husbands. Whereas, in two instances, the domicile of a married woman may be ceased, firstly, if a court of a competent jurisdiction grants a decree of dissolution of their marriage, then the domicile of the wife automatically no longer remain depend on the husband. Secondly, when the husband serves a prison term, the reliance of the domicile of the wife on the domicile of the husband gets suspended till the time he is released from the prison.
It can be concluded that right from the birth of a child, he acquires domicile by any means, but a person cannot be without a domicile as it is a link between a person and Law and environment.
Author: APURVA .,
3rd Year, Fairfield Institute of Management and Technology, GGSIPU