CENTRAL UNIVERSITY OF SOUTH

BIHAR

SCHOOL OF LAW AND

GOVERNANCE

SUBJECT: CONFLICT OF LAWS

PROJECT ON: DOMICILE OF ORIGIN

SUBMITTED TO-

MRS.POONAM KUMARI

FACULTY (ASSOCIATE

PROF.), SLG CUSB

SUBMITTED BY-
VISHAL RANJAN
B.A. LLB 9TH (SEMESTER)
CUSB1613125059
SESSION: 2016-
2021
CONTENT:

Sr TITLE Page
No. No.

1 Acknowledgement 3

2 Research Methodology 4

3 Objectives 4

4 Introduction 5

5 Brief History of Domicile 6

6 Importance of Domicile 6

7 Definition of Domicile 7

8 Domicile is an idea of law 9

9 Principles of Domicile 9

10 Domicile of Origin 10

11 Comparison between domicile of origin & choice 13

12 Judicial Response 14

13 Conclusion 16

14 Bibliography 17

ACKNOWLEDGEMENT

2
 At this point of time I would like to express my gratitude to all those who gave me their
support to complete this project.

I am grateful to my Conflict of Law teacher who is Mrs. Poonam Kumari (Associate Prof.)
SLG, for giving me permission to commence this project in the first instance and to do
necessary study and research. I want to thank law faculty members and other faculty
members for all their professional advice, value added time, effort and enterprise help,
support, interest and valuable hints that encouraged me to go ahead with my project.

I am deeply indebted to my colleagues for their meticulous planning, layout, presentation

and above all for their consideration and time.

My heartfelt appreciation also goes to seniors and my classmate for their stimulating
suggestions and encouragement which helped me at each level of my research and in writing
of this project.

Especially, I would like to give my special thanks to my parents, family members and god
whose patient love enabled me to complete this project in this ongoing pandemic situation in
the world.

I have tried my best to enclose practical approach of Conflict of Laws and also theoretical
approach to my project.

(Signature of the Student)

Vishal Ranjan

RESEARCH METHODOLOGY

3
The research is based on doctrine of domicile & domicile of origin. Basically the data which has
been collected for the research purpose is particularly of doctrinal in nature. It has been collected
from various books, sites, magazines and newspaper articles. So basically the analysis has
been done through case study.

OBJECTIVES OF RESEARCH
 To understand the concept of doctrine of domicile.
 To understand the concept of domicile of origin.
 To understand distinguish between domicile of origin and domicile of choice.
 To understand the recent change in the concept of domicile of origin.

INTRODUCTION OF DOCTRINE OF DOMICILE

4
Domicile is considered to be a connecting factor which links a person with a particular legal
system. This legal system includes his personal law which determines the legal capacity of that
person as for example whether that person has the legal capacity to marry or how the property of
a deceased person is to be distributed. For instance a married man domiciled in England is under
the jurisdiction of England for purposes of dissolving or annulling his marriage. The concept of
domicile is not just confined to conflict of laws but also extends to tax law and in fact many
leading judgments defining domicile are tax cases.
Differences which exist between two or more legal systems provide the theoretical foundation
for the subject known as conflict of laws. Every legal system has a rule which tends to
distinguish it from others. With particular regards to matters considered as bothering on an
individual’s civil status different legal system have established rules as to the law, which ought
to govern in those cases. These matters usually involve those aspects of the individual’s interests
for which resort can be had to a single system of law, in making a decision as to an appropriate
law that ought to govern.
In order to identify the specific system of law that should govern these issues with regards to a
particular or individual the laws of different countries have established diverse criteria. While in
England domicile is the rule, in Italy and some other European countries it is nationality. Some
other systems tend to combine both criteria1.
Domicile which is a private international law or conflict of laws concept identifies a person, in
cases having a foreign element, with a territory subject to a single system of law, which is
regarded as his personal law. A person is domiciled in the country in which he is considered to
have his permanent home. His domicile is of the whole country, being governed by common
rules of law, and not confined to a part of it. No one can be without a domicile and no one can
have two domiciles. A domicile of origin is attributed to every person at birth by operation of
law. This domicile is not decided by his place of birth or by the place of residence of his father or
mother, but by the domicile of the appropriate parent at the time of his birth, according as he is
legitimate or illegitimate. It is possible for the domicile of origin to be transmitted through
several generations no member of which has ever resided for any length of time in the country of
the domicile of origin. When a person is referred to as domiciled in a country, the expression
'country' is used in private international law as a term of art denoting, in the words of dicey, the
whole of a territory subject under one sovereign to one body of law. But in a federation like the
United States, Australia, or Canada, or in a composite State like the United Kingdom, different
systems of law may prevail in different regions in respect of certain matters. In such cases, each
of the territories governed by a separate system of law is treated, for the purpose of private
international law, as a 'country', though in public international law or constitutional law it is not a
separate sovereign State. This is, however, not the position in India.
Though a Union of States, and a federation in that sense, the whole country is governed by a
single unified system of law, with a unified system of judicial administration, notwithstanding
the constitutional distribution of legislative powers between the Centre and the States. There is
no State-wise domicile within the territory of India. A man who is domiciled in India is
1
Agbede.I.O: Themes on conflicts of laws, Ibadan shaneson, 1989. P49

5
domiciled in every State in India and identified with a territorial system of legal rules pervading
throughout the country. He is 'domiciled' in the whole of this country, even though his permanent
home may be located in a particular spot within it. Thus, the concept of “domicile” varies from
country to country and from jurisdiction to jurisdiction.

BRIEF HISTORY OF DOMICILE

The concept of domicile in common law is derived from the Roman law and the usus modernus
through the Canon law. According to a modern Canonist, "The term domicilium is derived from
domum colere, to foster or inhabit the home. Domicile is not any place of residence but a place
of habitual residence."
At that time the ordinary man's Diocese had authority over him in the Consistory Court in
England and a man's domicile in a Diocese was established by his habitual residence. The Bishop
of the Diocese of the domicile had jurisdiction in religious causes and in England this included
probate and matrimonial jurisdiction even before the Matrimonial Causes Act 1857 and the
Court of Probate Act 1857. English statutes dealing with marriage characterise the place where a
man dwells, of his dwelling place and domicilium is a habitation or a dwelling. Therefore
domicile is a place of residence in a diocese in roman canon law and in the English canon law
from which the English notion of domicile has evolved.

IMPORTANCE OF DOMICILE
Domicile not only acts as a connecting factor but it also has an exclusively extended role. It can
be used as a jurisdictional link which is a pre-requisite for assumption of jurisdiction by the
forum or for recognition and assumption of a foreign court's jurisdiction. It also determines an
individual's right to vote, his right to hold public office, his entitlement to support in respect of
various needs such as ill-health or unemployment and his liability to various forms of taxation.
Therefore there is no person without a domicile because it is necessary to connect a person with
some legal system to regulate his legal relationships.

DEFINITION OF DOMICILE

6
Domicile (the lex domicilii) 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. There is only one concept of domicile: accordingly, a case on whether a taxpayer has
acquired a domicile in England is also authority for the question of whether someone has the
capacity to marry or make a will.
According to Sir George Jessel - “The term domicile is incapable of definition” 2
According to Morris - “Domicile is easier to illustrate than it is to define. 3 This is probably due to
the fact that traditional definition has become rather obsolete as a result of judicial modification,
which has attended the concept overtime.
According to The Oxford Advance and Learners Dictionary define domicile as the place where
somebody lives, especially when it is stated for official or legal purpose”4.
According to The Black Law Dictionary defines the concept of the domicile as a person’s legal
home. That place where a man has his true, fixed and permanent home and principal
establishment, and to which whenever he is absent he has the intention of returning5”
Lord Cranworth attempted a definition sometimes ago in Whicker v. Hume 6 to the effect that 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 language will very
much help you to it” This definition by Lord Cranworth is obviously simplistic from the
subsequent judicial developments on these issues. In fact there is an opinion that the definition
by Lord Cranworth is far too simplicitic and indeed somewhat misleading.7
Lord Cranworth’s definition errs on the side of simplicity because there are circumstances in
which a person may not be residence in his place of domicile. The fact that one has lived in a
particular place for several years is irrelevant where there is intention to remain there.8
According Morris also objects to this definition on the ground that a person’s domicile may not
always be the permanent home. In fact according to him. A person may be domiciled in a
country which is not and never has been his home; a person may have two homes but he can only
have one domicile.
He concluded that there is often a wide difference between the English concept of domicile and
population of a home. Judicial authorities have equally shown that to acquire domicile according
to the received English law, it is necessary to establish residence in a place and an intention to
reside there permanently. The English courts have with complete justification established the
principle of definition of domicile for the purpose of English rule conflict of laws according to
the concept in English law Nevertheless it is clear from decided cases that to acquire domicile in
2
Doucat v Geoghegeon (1878) L.R. Ch. D at 256
3
Morris, Conflict of Laws, 4th ed by J.C Mc Lean, sweet & Maxwell
4 th
6 edition by sally wehmeire (2000)
5
Bayan A. Garner; Thomos west 2004.
6
(1958) HLC 124 at 160.
7
Collier J.G.: Conflicts of Law, Cambridge, c.u.p 1994. P40
8
White v Tenant (1880) WLR 790

7
territory, according to the received English law, it is necessary to establish residence and an
intention to remain there permanently (or indefinitely). A domicile can only be acquired by the
concurrence of these two factors. However, an intention of indefinite residence is not equivalent
to permanent residence if it is contingent upon uncertain event.9
In the case Moorhouse v. Lord10
It was held that the present intention of making a place a person’s permanent home exists only
where he has no other idea than to continue there without looking forward to any event, certain
or uncertain which might induce him to change his residence. If he has in his contemplation
some event upon the happening of which his residence will cease it is not rather a present
intention of making it a temporary home, though for a period indefinite and contingent.

DOMICILE CANNOT BE DEFINED WITH PRECISION

In the case Whicker v Hume11 defined domicile as „permanent home‟. However, you will find
many reported cases where a person has lived in a place for 30 or 40 years and has not been held
to have acquired a domicile there. After reading the cases listed above you may conclude that the
persons in question (such a person is often called the propositus) had permanent homes in
England, but in none of the four cases was a domicile acquired in England.
Therefore a person is said to have home in a country where he resides permanently without any
intention of moving. On the other hand a person does not cease to have his permanent home in a
country merely because he is temporarily residing elsewhere. But the traditional concept of
domicile has received criticism from reform agencies in England as well as in other countries
which follow English common law. This disapprobation is based mainly on two grounds, which
were also pointed out in 195412.
First point of contention relates to the extraordinary importance attached to the domicile of
origin, particularly to the revival of domicile of origin when domicile of choice is abandoned
without obtaining a new domicile of choice, and the fact that there is heavy burden of proof on
the person who asserts the change in the domicile of origin which seems to be irrational and
unjustified.
The second concerns with the difficulty attached in proving the intention required to acquire a
domicile of choice. It also concerns with regard to the doubt about the standard of proof required
to acquire a domicile of choice. All this criticism was put forward because of the ambiguities
created by the complex nature of the domicile law which not only results in time delay and
money outlay but also leads to uncertain results.
This research paper will discuss these criticisms in detail, looking into its brief history and the
law reform proposals recommended by the Private International Law Committee and the Bills
9
lbid
10
(1863) 10 HL Cas 272 at 285
11
(1858)7 HLC 124, 160
12
First report of the private international Law committee, cmnd 9068

8
which were presented to make amendments in these criticised concepts of the domicile of origin.
These contentious aspects of domicile law will also be compared with corresponding facets of
American Law where these flaws were removed by amending the law of domicile adequately.

DOMICILE IS “AN IDEA OF LAW”

Domicile diverges from the notion of permanent home in three ways:
Firstly, the elements required for the acquisition of a domicile go beyond those required for the
acquisition of a permanent home. Thus, to acquire a domicile of choice in a country a person
must intend to reside in it permanently or at least indefinitely.
Secondly, the law attributes a domicile to everyone, whether they have a permanent home or
not. A vagrant, for example, has a domicile.
Thirdly, certain persons, for example children under 16, cannot acquire independent domiciles.
They may thus have permanent homes in places in which they are not domiciled, because the
person upon whom they are dependent is domiciled elsewhere.

THE PRINCIPLES OF DOMICILE

The basic principles set out most recently in F v F13 are that:
 No person can be without a domicile 14. The law assigns a domicile of origin to every
person at the time of his birth, i.e. to a legitimate child the domicile of the father, to an
illegitimate child the domicile of the mother, and to a foundling the domicile of place
where he is found. This domicile of origin continues until a new domicile i.e. domicile of
choice is acquired.
 No person can at the same time for the same purposes have more than one domicile.15
 An existing domicile is presumed to continue until it is proved that a new domicile has
been acquired.16
 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. As for instance in India different rules will apply to different categories of
population according to their religion, race or caste.
The burden of proving a change of domicile lies on those who assert it. The change of a domicile
must be proved on a balance of probabilities, not beyond reasonable doubt.

13
(2009) 2 FLR 1496,1503
14
Mark v Mark (2006) 1 AC 98
15
IRC v Bullock (1976) 1 WLR 1178, 1184
16
Winans v A.G (1904) AC 287, 289

9
DOMICILE OF ORIGIN
It is a well-known principle that no person can be without a domicile. For the practicality in
applying this rule the law confers a domicile on every person on birth. This is known as the
domicile of origin. It continues to exist as long as the concerned person does not acquire another
domicile. Even if a person with a view to acquire another domicile gives up his domicile of
origin, it will continue to exist as long as he does not acquire a new domicile. The moment a
person gives up his domicile of choice, his domicile of origin revives. 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 legitimate child born during the
lifetime of father has his domicile in the country in which his father was domiciled. A legitimate
child born after the death of the father has domicile in the country in which the mother was
domiciled at the time of his birth. An illegitimate child has the domicile in the country in which
his mother was domiciled at the time of his birth. This is also the position in Indian law except
that the legitimate child born after the death of his father has his domicile in the country in which
the father was domiciled at the time of his death. Thus the domicile of origin is not dependent
upon the place where a child is born, or on the place where a child is born, but on the domicile of
the father or mother, as the case may be. There is only one exception to his rule, viz; domicile of
founding is the domicile of the country in which he is found. Domicile of origin is a creature of
law and no person can give it up totally. Every person must have a domicile and the domicile of
origin continues to exist till a person acquires a new domicile. For the revival of the domicile of
origin it is necessary that the domicile of choice should be abandoned voluntarily. Another
important aspect of the domicile of origin is that it automatically revives by operation of law on
the abandonment of the domicile of choice, whatever time might have elapsed after its
abandonment. This rule results in arbitrariness and injustice. The Indian Succession Act, Section
13 provides: “A new domicile continues until former domicile is has been resumed or another
has been acquired. Thus, under Indian law of domicile of choice continues until a new domicile
is acquired or the domicile of origin is resumed amino et facto. In the United States also the rule
is different; the previous domicile, whether of origin or choice, is retained till a new one is
acquired.

Every person acquires at birth a domicile of origin.

10
  This is the domicile of his father at the time of his birth if he is legitimate. It is the
domicile of his mother if he is illegitimate or if his father dies before he is born.
 Foundlings have a domicile of origin in the country in which they are found.
 A domicile of origin may be changed as a result of adoption, but not otherwise.
A domicile of origin is more tenacious than a domicile of choice. It is more difficult to prove it
has been abandoned. If a person leaves the country of his domicile of origin, intending never to
return to it, he continues to be domiciled there until he acquires a domicile of choice in another
country. But if a person leaves the country of his domicile of choice, intending never to return to
it, he ceases to be domiciled in that country unless and until he acquires a new domicile of
choice, his domicile of origin revives.
As mentioned earlier, domicile of origin is a domicile ascribed to a person when he is born. Lord
Westbury remarked in Udny v Udny: "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."
If a child is born after the death of the father or if an illegitimate child is later legitimated, in both
cases, the domicile of origin will remain 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. In the mentioned above
case the domicile of an illegitimate child was determined on the basis of the place where he was
found because the domicile of his mother was unknown.
The children under sixteen years 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.
The rules on the law of domicile had been laid down by the judges of the Victorian time and the
law of the domicile of origin has gained strength with time despite being criticised. Domicile of
origin is such a powerful concept that even if a person leaves his country of origin with an
intention not to return back, he is still considered to be domiciled there until he obtains a new
domicile of choice in another country. Therefore a person who has never even visited a particular
country can have the domicile of origin of that place. In Grant v Grant, a child was born in India
but his domicile of origin was held to be English following his father's domicile of origin. It
illustrates that domicile of origin is the hardest to lose among all the three types of domiciles.
Although the principle of domicile of origin was finally established in Udny v Udny, but it has
come a long way since then and has carried on proving its strength and significance since then.
As domicile is the only means of ascertaining a person’s personal under the English law, it is
inevitable that English law should require that everybody must have a domicile. In order to make
this rule work, the law assigns to every person a domicile at birth which is known as domicile of
origin. According to this rule, a legitimate child takes the domicile of his father.

11
The rules on the law of domicile had been laid down by the judges of the Victorian time and the
law of the domicile of origin has gained strength with time despite being criticised. Domicile of
origin is such a powerful concept that even if a person leaves his country of origin with an
intention not to return back, he is still considered to be domiciled there until he obtains a new
domicile of choice in another country. Therefore a person who has never even visited a particular
country can have the domicile of origin of that place. In Grant v Grant, a child was born in India
but his domicile of origin was held to be English following his father's domicile of origin. It
illustrates that domicile of origin is the hardest to lose among all the three types of domiciles.
Although the principle of domicile of origin was finally established in Udny v Udny, but it has
come a long way since then and has carried on proving its strength and significance since then.
As domicile is the only means of ascertaining a person’s personal under the English law, it is
inevitable that English law should require that everybody must have a domicile. In order to make
this rule work, the law assigns to every person a domicile at birth which is known as domicile of
origin. According to this rule, a legitimate child takes the domicile of his father. An illegitimate
child takes the domicile of its mother. A foundling takes the domicile of the country where it is
found.17
It is suggested therefore that an illegitimate child should be presumed to take the domicile of the
head of its family. It should be stressed, however, that this rule is by no means absolute. It is
merely a presumption so that in those cases where a child is virtually reared and maintained by
the mother or her family this presumption may be rebutted. This suggestion has no other basis
than the welfare of the child. It is therefore the child’s welfare that must be given overriding
consideration in this regard.
According to this law, almost overwhelming evidence is required to shake off the domicile of
origin.18 Its character is more enduring, its hold is stronger and less easily shaken off. 19 As put by
Lord Westbury “The domicile of origin is the creature of law and is dependent of the will of the
party, it would be inconsistent with the principle on which it is by law created and ascribed, to
suppose that it is capable of being by the act of the party entirely obliterated and extinguished. It
revives and exists wherever there is no other domicile and does not require being reacquired or
reconstituted animo et facto a manner which is necessary for the acquisition of a domicile of
choice.20
Even Cheshire has suggested that these rules evolve in the nineteenth century when England was
a nation of enterprising pioneer’s most of whom regarded their ultimate return home as a forgone
conclusion.21 The “revival” doctrine (this is done when one abandons his domicile of choice,
such revives back the domicile of origin) as well as the enduring character of domicile of origin
appear to rest on the assumption that a man belongs to his country of origin much more that to
the country of his choice. But this assumption has been dismissed as archaic and meaningless in

17
Dicey and Morris, the conflict of laws
18
Udom v Udom (1962) L.L.R 112
19
Winans v Att.Gen (1904) A.C. 287
20
Cheshire private international law
21
Wolff m, private international law

12
an age of migratory population. Perhaps, a better explanation for the development of rules of
domicile of origin in its rigid sense from the view of Rabel who wrote that; “The doctrine of
domicile of origin was maintained and developed to satisfy the natural desire of a home country
from which innumerable colonizer have gone out into the world”22
While a person may easily sever his connection with the country of his nationality (where that is
the connecting factor) he remains, for all times, a miserable prey to his domicile of origin. 23
Undoubtedly, the revival doctrine of domicile of origin runs counter to the fundamental principle
of domicile as it may locate a person’s domicile in a country which cannot be regarded as his
home by any stretch of the imagination.
The rule of domicile of origin might have been good law in an era where families were born and
when they lived and died in the same community and when the ties, both material and
sentimental, which bind one to his birth place, were strong.24 But under the present political
arrangement in Nigeria where state boundaries bear little relation to ethnic loyalty, to adopt such
rules will be socially undesirable if not legally embarrassing. Moreover, the mobility of society
generally has provoked, even in England, an almost unanimous criticism of this rule and the
recommendation for its change. Indeed the English rules of domicile of origin have found a place
in American law.25

COMPARISON BETWEEN DOMICILE OF ORIGIN AND DOMICILE OF CHOICE

The domicile of origin comes into existence by operation of law, independently of the volition 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. For its acquisition the existence
of animo et facto is necessary. There is a very strong presumption in favour of the continuance of
the domicile of origin. In comparison with domicile of choice, domicile of origin, in the words of
Lord Macnaughten “is more enduring, its hold is stronger and less easily shaken off”. Domicile
of origin cannot be abandoned easily. Since it is a creature of law and not of free will, domicile
of origin cannot be lost by mere abandonment. Until a domicile of choice is acquired, the
domicile of origin continues. In Bell.v.Kennedy26 Bell, who had his domicile of origin in Jamaica,
with a view to acquire a domicile of choice in Scotland left Jamaica He reached Scotland and
lived there with his mother-in-law and was looking for an estate to purchase. Yet he had not
firmly made up his mind to settle in Scotland. Then his wife died. The Court held that till then he
had not lost his domicile of origin. On the other hand, the domicile of choice is lost by the
moment it is abandoned. If a new domicile of choice is not acquired the domicile of origin
revives. Another outstanding feature of domicile of origin is that it is never lost; when a domicile
of choice is acquired, it remains in abeyance. As soon as the domicile of choice is abandoned or

22
Rabel: E, The conflict of Laws; a comparative study
23
Cheshire: private international law
24
Goodrich & scoles conflict of law (1964)39
25
Beale Treatise on the conflicts of laws (1935)
26
(1868) L.R 1 Sc & Div. 307

13
lost it immediately revives, even if all contacts with the country of the domicile of origin have
been lost.

JUDICIAL RESPONSE
In a recently reported decision of Naina Saini v. State of Uttarakhand,27 a Single Judge of the
Uttarakhand High Court has revisited the law relating to domicile of a person to declare that
there is no separate domicile for each State and there is only one domicile for the entire country.
The decision was rendered in the wake of the challenge to the decision of the Uttarakhand local
authority's order denying OBC domicile certificate to the petitioner on the ground that though
she was born in Uttarakhand but since she had married a person from Delhi, she no longer
possessed the domicile of the State of Uttarakhand. The High Court held otherwise.
In the case of Dr. Pradeep Jain v. Union of India, the Supreme Court observed: “The entire
country is taken as one nation with one citizenship and every effort of the Constitution makers is
directed towards emphasizing, maintaining and preserving the unity and integrity of the nation.
Now if India is one nation and there is only one citizenship, namely, citizenship of India, and
every citizen has a right to move freely throughout the territory of India and to reside and settle
in any part of India, irrespective of the place where he is born or the language which he speaks or
the religion which he professes and he is guaranteed freedom of trade, commerce and intercourse
throughout the territory of India and is entitled to equality before the law and equal protection of
the law with other citizens in every part of the territory of India, it is difficult to see how a citizen
having his permanent home in Tamil Nadu or speaking Tamil language can be regarded as an
outsider in Uttar Pradesh or a citizen having his permanent home in Maharashtra or speaking
Marathi language be regarded as an outsider in Karnataka. He must be held entitled to the same
rights as a citizen having his permanent home in Uttar Pradesh or Karnataka, as the case may be.
To regard him as an outsider would be to deny him his constitutional rights and to derecognise
the essential unity and integrity of the country by treating it as if it were a mere conglomeration
of independent States”.
Also, in the case of Dr.Yogesh Bhardwaj v. State of U.P, the Supreme Court observed:
“Domicile', being a private international law concept, is inapposite to the relevant provisions,
having no foreign element, i.e., having no contact with any system of law other than Indian,
unless that expression is understood in a less technical sense. An expression, which has acquired
a special and technical connotation, and developed as a rule of choice or connecting factor
amongst the competing diverse legal systems as to the choice of law or forum, is, when
employed out of context, in situations having no contact with any foreign system of law, apt to
cloud the intended import of the statutory instrument.

In Y. Narasimha Rao v. Y. Venkata Lakshmi, the Supreme Court observed: “As pointed out
above, the present decree dissolving the marriage passed by the foreign court is without
27
AIR 2010 utr 36

14
jurisdiction according to the Act as neither the marriage was celebrated nor the parties last
resided together nor the respondent resided within the jurisdiction of that court. The decree is
also passed on a ground that is not available under the Act, which is applicable to the marriage.
What is further, the decree has been obtained by appellant 1 by stating that he was the resident of
the Missouri State when the record shows that he was only a bird of passage there and was
ordinarily a resident of the State of Louisiana. He had, if at all, only technically satisfied the
requirement of residence of 90 days with the only purpose of obtaining the divorce. He was
neither domiciled in that State nor had he an intention to make it his home. He had also no
substantial connection with the forum.

CONCLUSION

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Thus, I would like to conclude that, the concept of domicile in common law and civil law are
different from each other. In common law domicile means equivalent of a person’s permanent
residence and in civil law it means habitual residence. In common law there are two variant of
the domicile theory –
1) Domicile of origin
2) 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
origin every person acquires at birth a domicile of origin. A domicile of origin may be changed
as a result of adoption, but not otherwise.
Domicile of choice is that domicile that any person of full age is free to possess instead of the
one he already possesses. Any person who is not dependent on another can acquire a domicile of
choice and may change his domicile by taking up residence in another country with the intention
to reside permanently.
If a person leaves the country of his domicile of origin, intending never to return to it, he
continues to be domiciled there until he acquires a domicile of choice in another country. But if a
person leaves the country of his domicile of origin, intending never to return to it, he ceases to be
domiciled in that country unless and until he acquires a new domicile of choice, his domicile of
origin revives.

BIBLIOGRAPHY

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1. Dicey and Morris; Private International Law (8th ed.1969)
2. Goodrich and Scoles; Conflict of laws (1964)39
3. Graveson; conflict of laws (1969) 6.
4. Morris, Private International Law 4th ed by J.C Mclean Sweet & Maxwell 1993

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