Author: Sivapuram V.L. Thejaswini Student, Alliance University
This concept of domicile generally gives us the idea of a permanent home. It is the underlying concept to determine many questions of status that arise in the conflict of laws. It is given under ‘Article 5’ of the Indian Constitution about “Citizenship at the commencement of the Constitution”. This article makes the domicile a necessary & absolute condition to confer citizenship at the commencement of the Constitution.
Domicile is also being dealt under Part II of the Indian Succession Act, 1925 with respect to conflict of laws. Neither our Constitution nor the Indian Succession Act clearly defines this term ‘domicile’. So it is to be understood mostly by the judicial interpretation.
Article 5 makes India as Unidomiciliary –
Article 5 provides that there is only one domicile in India which is implied from its words;
“At the commencement of the Constitution every person who has his domicile in the territory of India and….”
In both these cases of ‘D.P. Joshi v. The State of Madhya Bharat[1]’ & ‘N. Vasundara v. State of Mysore[2]’ the issue was about single domicile where the term ‘domicile’ has been used in regard of domiciliary requirement for the limited purpose of admission (or) selection locally within the state unit.
It was pointed out by the Apex court in ‘Pradeep Jain v. Union of India’ that;
“Article 5 of the Indian constitution expressly deals with one and only one domicile that is domicile in the territory of India. It is also seen through our legal system where it is single and indivisible with the Supreme Court at the apex in a hierarchy which lays down laws for the entire country[3].”
How to define the term domicile ?
As there is no exact definition of domicile that is provided by any Statute, so the question before us would be how to define it. It involves a mixed question of fact and law both.
There are some judicial interpretations that can be drawn to define this term.
It was pointed out by the Apex court in ‘Central Bank of India v. Ram Narain’, that it is impossible to define the term “domicile” as it gives us an idea of illustration itself rather than a definition. It was further explained in this case that the term domicile denotes the relationship between a person and a specific territorial unit that has its own system of law[4].
Venkatrama Iyer has rightly explained the meaning of domicile as “permanent home” in ‘D.P. Joshi v. The State of Madhya Bharat[5]’.
Generally to determine the concept of domicile it is the intention of permanent residence that has to be looked into has been decided by the Supreme court in various cases on the issue of domicile[6].
It was given in ‘Sankaran Govindan v. Lakshmi Bharathi’ that at the given time, the person should have positive intention, may be present/past. At some point of time in life the person must have a fixed intention to reside in a given territory (or) country. All the particulars of a person – like his habits, health, hope, tastes, habits, aspirations and goals etc are also considered to be very essential because they are the basis for forming an intention to make a permanent home (or) a domicile as such[7].
Criticism – The decisions of the Supreme Court were being criticized by the Scholar Cheshire where according to him the court gave an unnatural meaning to the term ‘permanent’ in all these case and he further lays down that English perception of finding the domicile of a person has been followed here[8].
Kinds of domicile –
There are two kinds of domicile;
i) Domicile of origin is acquired by a person at the time of birth through the operation of law.
ii) Domicile of choice is acquired by a person based on his own choice with an intention to reside in a place for an unlimited period of time.
The various aspects of the law pertaining to domicile has been given in the case of Kedar Pandey v. Narain Bikram Sah, that the law of domicile pertains to each and every person which is known to be “domicile of origin”. The domicile may not be fixed and can change from one place to other according to the choice of a person to reside there indefinitely which is known to be “domicile of choice[9]”.
Burden of proof – The burden lies upon the person who asserts the change to prove about the change in domicile.
Legitimate child – This child receives the domicile of father at the time of birth.
Migration to other countries –
There were various issues that arose before the Supreme Court regarding the domicile in the context of migration. Intention plays an important role even in the migration aspects.
In Shanno Devi v. Mangal Sain, the Apex court held that the term ‘migration’ also includes the change in domicile. It was also decided that the term ‘migrate’ means a person who goes to the other country with an intention of acquiring such new domicile[10].
This view in Shanno Devi case was overruled by the court in Kulathil v. State of Kerala by stating that though migration may be a considerable element to determine the cases of change in domicile but migration merely does not amount to change of domicile[11].
In State of Bihar v. Kumar Amar Singh there was a wife who left to Pakistan & her husband was in India itself. But here she loses her Indian citizenship because she failed to prove that it was not for a permanent purpose under Article 7.
In Narasimha Rao v. V. Lakshmi that deals with the recognition of foreign divorce decrees in India, it was decided that the domiciliary law of husband has to be followed by the judges in cases to determine the merits & jurisdictional aspects. It means that the domicile of wife follows that of her husband[12].
Domicile of Corporation –
Corporation means a legal entity that has a separate existence from its owners & shareholders. Corporations can also enter into agreements, contracts, borrow loans, own assets etc., In case of any disputes/issue the domicile of corporation helps the courts to exercise jurisdiction, serve notice & summons on such corporations.
In Turner Morrison & Co. v. Hungerford the issue before the Supreme Court was about the residence of a Corporation that has business dealings across the national boundaries. In this case, it was held that a corporation that is resided in India, involved in business in India and generally such a corporation can have multiple, many & various domiciles[13].
Difference between the Indian & English approach –
There is a difference between the Indian & English law with respect to the Domicile and residence of Corporation.
Under the English law, the place of incorporation becomes the domicile of corporation. The residence is the place where the key management is situated & control is exercised by the corporation. Where as under the Indian law it is different because there can be multiple domiciles as such for a Corporation.
Conclusion –
Thus, we can see that this concept of domicile is very important under the Private International law which is sometimes also called the Conflict of laws. It is of immense importance because various aspects have to be considered as such to determine the domicile of a person/corporation etc., Because the laws vary accordingly. Where different countries follow different types of laws. So while delivering the judgements it has to be kept in mind about various laws of different countries and apply the best possible one according to the facts, circumstances and merits of the case.
[1] AIR 1955 SC 334
[2] AIR 1971 SC 1439
[3] 1984 SCR (3) 942
[4] AIR 1955 SC 36
[5] Ibid 1
[6] Kedar Pandey v. Narain Bikram Sah AIR 1966 SC 160 and Louis de Raidt v. Union of India AIR 1991 SC 1886.
[7] AIR 1974 SC 1764
[8] Cheshire, Private International Law, 8th edn (1970) at 164
[9] AIR 1966 SC 160
[10] AIR 1961 SC 58
[11] AIR 1966 SC 1614
[12] (1991) 3 SCC 451
[13] AIR 1972 SC 1309