RAJIV GANDHI NATIONAL UNIVERSITY OF

LAW, PUNJAB

5th Semester

CONFLICT OF LAW

TOPIC: CONCEPT OF DOMECILE

SUBMITTED TO: SUBMITTED BY:

GAGAN PREET KAUR SHUBHAM PANDEY

Assistant Professor of Law ROLL NO. 19003

GROUP: 02

1
ACKNOWLEDGEMENTS

This project on the topic “CONCEPT OF DOMECILE” has been made possible due to the
guidance of my professor in Conflict of Law Mrs. Gagan preet. I am thankful to her for her
suggestions as well as her cooperative approach. I am also grateful to the support staff of the
University who helped me give shape to this project in its very concrete form. The
administration of the University too deserves special thanks as they helped in providing
adequate facilities which were essential in making this project. Lastly, I would also like to thank
my friends and family who provided me with constant encouragement and support in making
this project a success.

SHUBHAM PANDEY

ROLL NO. 19003

GROUP NO. 02
 Synopsis

 Introduction
 Meaning of domicile
 Brief history of domicile
 Definition of domicile
 Rules of domicile
 Kinds of domicile
 Domicile of origin
 Domicile of choice
 Domicile of dependent
 Statutory provision of domicile in India
 Constitutional provision of domicile in India
 Judicial response
 Conclusion
Introduction-

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.

Meaning of domicile-

The concept of domicile is not uniform throughout the world and just as long residence does
not by itself establish domicile, a brief residence may not negative it. But residence of
particular purpose fails to answer the qualitative test for, the purpose being accomplished the
residence would cease. The residence must answer “a qualitative as well as a quantitative
test”, that is, the two elements of factum and animus must concur.

The concept of lex domicilli is the Latin term for “law of the domicile” in the conflict of laws.
Conflict of law is the branch of public law regulating all lawsuits involving a “foreign” law
element where a difference in result will occur depending on which laws are applied. When a
case comes before a court and all the main features of case are local, the court will apply the
lex fori, the prevailing municipal law, to decide the case. But if there are “foreign” elements
to the case, the forum court may be obliged under the conflict of laws system to consider:

1. Whether the forum court has jurisdiction to hear the matter or not;
2. It must then characterise the issues, that is, allocate the factual basis of the case to its
relevant legal classes; and
3. Then apply the choice of law rules to decide the lex causae, that is, which law is to be
applied to each case class.

The lex domicilii is a common law choice of law rule applied to cases testing the status and
capacity of the parties to the case. The civil law states use a test of either lex patriae (the law
of nationality) or the law of habitual residence to determine status and capacity.
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.

Definition of domicile-

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.

Domicile cannot be defined with precision-

Old cases such as Whicker v Hume,1 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.
1
[1858] 7 HLC 124, 160.
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 1954.2

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
which were presented to make amendments in these criticized 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 as “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.
2
(First Report of the Private International Law Committee, Cmnd 9068).
According to Sir GEORGE JESSEL;

“The term domicile is incapable of definition”3

MORRIS also has asserted that;

“Domicile is easier to illustrate than it is to define”4

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.

THE OXFORD ADVANCE AND LEARNERS DICTIONARY define domicile as;

“The place where somebody lives, especially when it is stated for official or legal purpose”5

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
returning”6

Rules of domicile-

There are five general rules or principles to be discussed

1. It is a settled principle that no person can be without a domicile.7 The rule springs with
some system of law by which a number of his legal relationships may regulated.

“it is a settled principle said Lord Westbury in leading case, 8 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,. This has been called the domicile of origin, and involuntary”9

2. A person cannot have two domiciles. Since the object of law in 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 fact and events of his life frequently
impinge upon

3
Doucat v Geoghegeon (1878) L. R. 9 Ch. D at 256.
4
Morris, Conflict of laws, 4th ed. by J. C McLean, Sweet and Maxwell, 1993, p.126th edition.
5
6th edition by Sally Wehmeier (2000).
6
Bryan A. Garner: 8th edition Thompson West 2004.
7
Bell v Kennedy (1868) LR 1 Sc & Div 307.
8
Westlake :S 248; Dicey and Morris P.126.
9
Udny v Udny (1869) L.R. 1 SC 441, 458.
several countries, it is necessary on practical grounds to hold that he cannot possess more
than one domicile at the same time, at least for the same purpose.

3. The fact that domicile signifies connection with a single system of territory law does not
necessarily connote a system that prescribes identical rule for all classes of persons. It may
well be that in a unit such as India different classes of the population according to their
religion, race or caste, but none the less it is the territorial law of India that governs each
person domiciled there, notwithstanding that Hindu law may apply to one case, Muslim to
another.

4. An existing domicile is presumed to continue until it is proved that a new domicile has
been acquired. Hence, the burden of proving a change of domicile lies on those who assert it.
Conflicting views have been expressed as to the standard proof require to rebut the
presumption.

The presumption of continuance of domicile varies in strength according to the kind of

domicile which is alleged to. It is weakest when that domicile is one of dependency and
strongest when domicile is one of origin, for its character is more enduring, its hold stronger,
and easily shaken off.

5. For the purpose of a rule of conflict of laws, domicile means domicile in the English sense.
The question where a person in domiciled is determined soled in accordance with English
law. Thus, persons domiciled in England often acquired a domicile of choice in France
without complying with the formalities formerly required by French law for the acquisition of
a French domicile.10 Conversely, a person domiciled in e.g. France may acquire an English
domicile of choice regardless of whether French law would regard him as domiciled in
England. There is one statutory exception to this rule. Section 46 (5) of the family law Act
1986 refers to domicile in a country in the sense of that country’s law It is too wide a
formulation to say that an English court, domicile means domicile in the English sense.
Under the renvoi doctrine, English courts sometimes refers to the whole law of a foreign
country, including its rules of the conflict of laws, and accept a reference back to English law
either because the foreign conflict rule referrers to the law of the nationality, and the
propositus is a British citizen; or because the foreign conflict rule refers to the law of the
domicile, and the foreign court regards the propositus as domiciled in England. In the latter
case, it is not true that domicile in English court always means domicile in the English sense;
but it is still true that it means domicile in
10
Collier v Rivas (1841)2 Curt 855
the English sense for the purpose of an English rule of the conflict of laws There are different
kind of domicile and they are;.

 Domicile of origin
 Domicile of choice
 Domicile of dependent person e.g. domicile of children, married women, persons of
unsound mind and so on.

Kinds of domicile-

Every person in accordance with the English law is required to have or acquire a domicile
and since domicile is the means of ascertaining a person’s personal law under the English. In
this regard, acquisition of domicile is a way by which domicile can be obtained by a person.
The various types of domicile has a way they can be acquired e.g. domicile of origin is
acquired at birth, this is rather automatic in that it is ascribe to every person at birth unless
such person acquire another by his own choice when eligible. Domicile of choice on the other
hand is acquired when a person takes up residence in another country which is backed up by
an intention to remain permanently. There are however special cases where domicile is being
dictated by some external necessity, such as offices, the demands of creditors or relief from
illness. The loss of domicile of choice, domicile of origin and choice contrasted and how
domicile and nationality can be changed.

Domicile of origin-

Every person acquires at birth a domicile of origin.

 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:11

"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."

Domicile of Choice-

Any person who is not dependent on another (i.e., one who is not a child or a mentally
disordered person) can acquire a domicile of choice or may change his domicile by taking up
residence in another country with the intention of remaining there permanently.

The two requisite here is residence and intention and they are normally referred to as “factum
and animus” respectively. It is not essential that the “factum and animus” should come in any
particular order so long as it comes at a point in time. These two factors must coincide before
the law will recognize a change of domicile. Every independent person can acquire a
domicile of choice by the combination of residence and intention of permanent or indefinite
residence.

Residence-

“Residence” means physical presence as an inhabitant. 12 It is not necessary that residence

should be of long duration.

In an American case,13 part of a day was enough. An immigrant can acquire a domicile
immediately on arrival if he or she intends to settle.

In Puttick v Att-Gen,14 it was held that a domicile of choice cannot be acquired by illegal
residence (in this case it was claimed by a member of a German terrorist group). It may not
follow that an English court would say that domicile of choice could not be acquired by
illegal residence in a country outside the United Kingdom: for example, an Al-Qaida member
with a domicile of origin in Saudi Arabia living permanently in Germany.

A Full Bench of the Kerala High Court in T. J. Poonen v. Rathi Varghese,15 after considering
various decisions gave the following propositions:

11
See Supra note 9.
12
IRC v Duchess of Portland [1982] Ch 314, 318–319.
13
White v Tennant 8 SE 596 [1888].
14
([1980] Fam 1).
15
AIR 1967 Kerala 1 (FB).
1. To constitute “residence” it is not necessary that the party or parties must have his or their
own house.

2. To constitute “residence” the stay need not be permanent; it can be temporary, so long as
there is animus manendi or an intention to stay for an indefinite period.

3. “Residence” will not take in a casual stay in, or flying visit to a particular place; a mere
casual residence in a place for a temporary purpose, with no intention of remaining, is not
covered by the word „reside‟.

4. “Residence” connotes something more than stay; it implies some intention to remain at a
place, and not merely to pay it a casual visit.

5. As emphasized by the Supreme Court, by staying in a particular place, in order to

constitute “residence”, the intention must be to make it his or their abode or residence, either
permanent or temporary.

6. The expression “last resided” also means the place where the person had his last abode or
residence, either permanent or temporary.

7. Where there has been residence together of a more permanent character, and a casual or
brief residence together, Courts have taken the view that it is only the former that can be
considered as “residence together” for determining the jurisdiction.

8. The question as to whether a particular person has chosen to make a particular place his
abode, is to be gathered from the particular circumstances of each case.

Intention-

“Intention” is intention to reside permanently or indefinitely in a country, that is not for a

limited period or a particular purpose. If the person will leave upon the occurrence of a
contingency, this possibility will be ignored if the contingency is vague and indefinite (e.g.,
winning the lottery), but if it is clearly foreseen and reasonably anticipated (e.g. coming to the
end of employment), it may prevent the acquisition of a domicile of choice.

Naturalization is relevant, but it is not decisive as a matter of law. It is a circumstance and

any circumstance which is evidence of a person’s residence, or his intention to reside
permanently or indefinitely, must be considered in determining whether he has acquired a
domicile of choice in that country.
Most disputes as to domicile turn on the question of whether the necessary intention
accompanied the residence. A court has said there is no act, no circumstance in a man’s life,
however trivial it may be in itself, which ought to be left out of consideration in trying the
question whether there was an intention to change the domicile. A trivial act might possibly
be of more weight with regard to determining this question than an act which was of more
importance to a man in his lifetime.16

Domicile of dependents-

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 dependent 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 can’t
abandon his dependency.

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. There are basically three classes of dependents, viz., minors, married women and
mentally disordered persons.

Married women-

In Gray v Formosa,17 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 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 husband’s actual and the wife’s legal domicile are one,
wherever the wife maybe residing. By a valid marriage, the domicile of the wife becomes that

16
(Drevon v Drevon [1864] 34 L J Ch 129, 133).
17
(1963) p. 259.
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.

In Lord Advocate vs. Jaffrey,18 the facts were as follows: a husband and wife were domiciled
in Scotland. The husband left to live in Queensland with the consent of his wife. He
contracted a bigamous marriage in Queensland. The wife remained in Scotland where she
died. Proceedings were brought in Scotland to determine the domicile of the wife. On appeal
to the House of Lords, it was ruled that the wife was domiciled in Queensland, even though
she had never visited there.

If the marriage is void, the wife does not acquire the domicile of her husband.19 But if she
goes to another country and lives with a putative husband, she may acquire a domicile of
choice there.20 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.

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.21

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. Here it was held that the wife’s domicile
remains that of the husband even if he deserts her.

Minor Children-

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.

18
(1921) 1 A.C. 146.
19
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).
20
Von Lorang v Adm. Of Austrian Property, (1927) A.C. 641
21
R. Dolphin v Robins, (1859) 7 H.L.C. 390 (1944) All. 97.
Domicile of natural children-

In respect of natural children’s domicile, the established rules of private international law are:

a) The domicile of a legitimate minor children, if parents have not separated

during minority,

i) Is the domicile of the father as long as the as the father is alive and it changes
when with the domicile of the father,
ii) After the death of the father it is the domicile of the mother so long as the mother
is alive and 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.22

Indian law is slightly different from English law in this aspect. Indian law recognizes three
exceptions when minor’s 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.

Domicile of minor child after 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
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.

22 Dicey and Morris, Rule 12, p.110; Cheshire, 176

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:

a) When the child is living with his mother and is not with his father,

b) 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

c) The child will continue to have his mother’s domicile even after the death of
his mother, if he has acquired his mother’s domicile by virtue of his having his home
with his mother, and not with his father.

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 it 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.

Domicile of Married Minor Child-

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. 23 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.
23
Section 15 of the Indian succession act, 1925.
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.

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. In the modern English law lunacy is categorized on the basis of degrees of mental
disorder.

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.

Statutory provisions of domicile in India-

Indian succession act is general law of land which applies to all except those to whom their
personal law applies. Those married under personal law are beyond purview of Indian
succession act. Those married according to special marriage act are governed by Indian
divorce act and also Indian succession act. However, part Ii of Indian succession act is only
statutory law on domicile in India, therefore, for understanding concept of domicile the
provision of part II carry relevance as law. There is not much law or conflict rule in personal
laws as these law withdraw their protection to those who dared to act beyond their personal
law based on their religion. There was no or less interaction in between followers of these
religion based law and obviously there can be no conflict if there is no interaction or inter
communion.

Section 4. Application of Part-

This Part shall not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jain.

Section 5. Law regulating succession to deceased person’s immoveable and moveable

property, respectively-
 (1) Succession to the immoveable property in India of a person deceased shall be
regulated by the law of India, wherever such person may have had his domicile at the
time of his death.
(2) Succession to the moveable property of a person deceased is regulated by the law of
the country in which such person had his domicile at the time of his death.
I. A, having his domicile in India, dies in France, leaving moveable property in
France, moveable property in England, and property, both moveable and
immoveable, in India. The succession to the whole is regulated by the law of
India.
II. A, an Englishman, having his domicile in France, dies in India, and leaves
property, both moveable and immoveable, in India. The succession to the
moveable property is regulated by the rules which govern, in France, the
succession to the moveable property of an Englishman dying domiciled in
France, and the succession to the immoveable property is regulated by the law
of India.

Section 6. One domicile only affects succession to moveable’s-

A person can have only one domicile for the purpose of the succession to his moveable
property.

Section 7. Domicile of origin of person of legitimate birth-

The domicile of origin of every person of legitimate birth is in the country in which at the
time of his birth his father was domiciled; or, if he is a posthumous child, in the country in
which his father was domiciled at the time of the father's death.

Section 8. Domicile of origin of illegitimate child-

The domicile of origin of an illegitimate child is in the country in which, at the time of his
birth, his mother was domiciled.

Section 9. Continuance of domicile of origin-

The domicile of origin prevails until a new domicile has been acquired.

Section 10. Acquisition of new domicile-

A man acquires a new domicile by taking up his fixed habitation in a country which is not
that of his domicile of origin.

Explanation- A man is not to be deemed to have taken up his fixed habitation in India merely
by reason of his residing there in the civil, military, naval or air force service of Government,
or in the exercise of any profession or calling.

Section 11. Special mode of acquiring domicile in India-

Any person may acquire a domicile in India by making and depositing in some office in
India, appointed in this behalf by the State Government, a declaration in writing under his
hand of his desire to acquire such domicile; provided that he has been resident in India for
one year immediately preceding the time of his making such declaration.

Section 12. Domicile not acquired by residence as representative of foreign government, or

as part of his family-

A person who is appointed by the Government of one country to be its ambassador, consul or
other representative in another country does not acquire a domicile in the latter country by
reason only of residing there in pursuance of his appointment; nor does any other person
acquire such domicile by reason only of residing with such first-mentioned person as part of
his family, or as a servant.

Section 13. Continuance of new domicile-

A new domicile continues until the former domicile has been resumed or another has been
acquired.

Section 14. Minor’s domicile-

The domicile of a minor follows the domicile of the parent from whom he derived his
domicile of origin.

Exception. --The domicile of a minor does not change with that of his parent, if the minor is
married, or holds any office or employment in the service of Government, or has set up, with
the consent of the parent, in any distinct business.

Section 15. Domicile acquired by woman on marriage-

By marriage a woman acquires the domicile of her husband, if she had not the same domicile
before.
Section 16. Wife’s domicile during marriage-

A wife's domicile during her marriage follows the domicile of her husband.

Exception.--The wife's domicile no longer follows that of her husband if they are separated by
the sentence of a competent Court, or if the husband is undergoing a sentence of transportation.

Section 17. Minor’s acquisition of new domicile-

Save as hereinbefore otherwise provided in this Part, person cannot, during minority, acquire
a new domicile.

Section 18. Lunatic’s acquisition of new domicile-

An insane person cannot acquire a new domicile in any other way than by his domicile
following the domicile of another person.

Section 19. Succession to moveable property in India in absence of proof of domicile

elsewhere-

If a person dies leaving moveable property in India, in the absence of proof of any domicile
elsewhere, succession to the property is regulated by the law of India.

Constitutional provisions of Domicile in India-

Article 5. Citizenship at the commencement of the constitution-

At the commencement of this Constitution, every person who has his domicile in the territory
of India and-

(a) Who was born in the territory of India; or

b) Either of whose parents was born in the territory of India; or

(c) Who has been ordinarily resident in the territory of India for not less than five years
immediately preceding such commencement, shall be a citizen of India.

Article 6. Right of citizenship of certain persons who have migrated to India from Pakistan-

Notwithstanding anything in article 5, a person who has migrated to the territory of India
from the territory now included in Pakistan shall be deemed to be a citizen of India at the
commencement of this Constitution if-
(a) he or either of his parents or any of his grand-parents was born in India as defined in the
Government of India Act, 1935 (as originally enacted); and

(b) (I) in the case where such person has so migrated before the nineteenth day of July, 1948,
he has been ordinarily resident in the territory of India since the date of his migration, or

(II) in the case where such person has so migrated on or after the nineteenth day of July,
1948, he has been registered as a citizen of India by an officer appointed in that behalf by the
Government of the Dominion of India on an application made by him therefor to such officer
before the commencement of this Constitution in the form and manner prescribed by that
Government:

Provided that no person shall be so registered unless he has been resident in the territory of
India for at least six months immediately preceding the date of his application.

Article 7. Right of citizenship of certain migrants to Pakistan-

Notwithstanding anything in articles 5 and 6, a person who has after the first day of March,
1947, migrated from the territory of India to the territory now included in Pakistan shall not
be deemed to be a citizen of India:

Provided that nothing in this article shall apply to a person who, after having so migrated to
the territory now included in Pakistan, has returned to the territory of India under a permit for
resettlement or permanent return issued by or under the authority of any law and every such
person shall for the purposes of clause (b) of article 6 be deemed to have migrated to the
territory of India after the nineteenth day of July, 1948.

Article 8. Right of citizenship of certain persons of Indian origin residing outside India-
Notwithstanding anything in article 5, any person who or either of whose parents or any of
whose grand-parents was born in India as defined in the Government of India Act, 1935 (as
originally enacted), and who is ordinarily residing in any country outside India as so defined
shall be deemed to be a citizen of India if he has been registered as a citizen of India by the
diplomatic or consular representative of India in the country where he is for the time being
residing on an application made by him therefor to such diplomatic or consular
representative, whether before or after the commencement of this Constitution, in the form
and manner prescribed by the Government of the Dominion of India or the Government of
India.

Article 9. Persons voluntary acquiring citizenship of a foreign state not be citizens-

No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of
India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any
foreign State.

Article 10. Continuance of the right of citizenship-

Every person who is or is deemed to be a citizen of India under any of the foregoing
provisions of this Part shall, subject to the provisions of any law that may be made by
Parliament, continue to be such citizen.

Article 11. Parliament to regulate the right of citizenship by law-

Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament
to make any provision with respect to the acquisition and termination of citizenship and all
other matters relating to citizenship.

Conclusion-

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.

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 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.
 Bibliography

Book preferred:

 Dr. Tripathi, G. B., Conflict of Laws, Allahabad law agency, Haryana, second edition,
2017.
 Setalvad, Atul M., Conflict of Laws, Lexis Nexis, Haryana, third edition, 2014.

Internet source:

 http://india.indymedia.org/en/2005/04/210449.shtml
 https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&cad=rja&
act=8&ved=0ahUKEwj5ypec4frLAhWNco4KHQ9zA6oQFgg3MAM&url=http%3 A
%2F%2Flegalperspectives.blogspot.com%2F2010%2F08%2Fonly-one-domicile-
for-entire-india-high.html&usg=AFQjCNGbuc1DuP8rWdTzt8SE326jdb-
86w&bvm=bv.118443451,d.c2E