DOMICILE

QUESTION

1. What is Domicile?
2. Explain various kinds of Domicile
3. Discuss the law relating to Domicile

INTRODUCTION

The concept of domicile as envisage under Chapter 2 of the Succession Act of India, 1925 clearly intends to be used as a yardstick for the determination of the civil status of an individual to the exclusion of any person under the following faith Hindu, Muslim, Buddhist, Sikh.

DEFINITION

Domicile is the attribution of being or seeing a place as a person’s permanent abode. For a place to be seen as the acceptable domicile of a person, there must be evidence to the effect that the person sees the said domicile as his permanent abode.

Irrespective of the fact that a person has lived in a given place, state or jurisdiction for a long time in the absence of that mental acceptance of such person showing that the said jurisdiction shall be his permanent abode it will not be deemed as that person’s domicile.

Therefore, the mere act of residing in a place in the absence of the will of accepting such place as a permanent abode vitiates such place as a domicile.

While within a country domicile can be determined by state but it can also be limited to a country where the person lives beyond the shores of his country of origin. The illustration is Amman, a citizen of India, who had lived all his life from the age of 4 years in England. He lives all his life according to the dictates of the  English culture but still insists that he is an Indian and upon his demise, his remains must be buried in India according to his culture or religion.

From the above definition of domicile, it is obvious that while Amman’s residence may be Southampton in the UK but his domicile in India. See the case of Bestolov vs. Povarenkin 2017 where the domicile of wealthy Russians residing in UK was extensively discussed and determined.

Again, Taj is an indigene of Delhi but resides in Punjab all within India, provided that he consistently expresses the desire to live all his life in Punjab, his domicile is unequivocally Punjab.

See the case of Joshi vs. the State of Madya Bharat for the stance of the Indian court pertaining to the extent of domicile.

KINDS OF DOMICILE

1. Domicile by origin
2. Domicile by choice
3. Domicile by operation of law

DOMICILE BY ORIGIN

In discussing domicile by origin the following classes of a person shall be considered. They are a legitimate child, an illegitimate child, and a posthumous child. Every person upon birth is vested with a domicile. Birth is the medium through which a person gets the first contact with the law and environment.

In other words, this kind of domicile (by origin) is also known as a domicile by birth.  A legitimate child upon birth by virtue of Section 7 of Succession Act of India 1925 acquires the domicile of the father at the time of his birth.

By virtue of Section 8 of the same Act of 1925, an illegitimate child is clothed with the domicile of the mother at the time of the child’s birth. In the case of a posthumous child, his domicile is the domicile of the deceased father prior to his death; see Section 7 of the Succession Act of India, 1925 above.

DOMICILE BY CHOICE

On attaining the age majority one is faced with a lot of decisions which he is at liberty to take and bear the responsibility. One of such decisions is the choice of domicile. A person of age and sound mind acquires the domicile of a place when he voluntarily decides to live indefinitely in a place.

By establishing a permanent desire to live in a given place the law will recognize the new place as the domicile by habitation, in the absence of such the law will not foist a domicile on a person.

An illustration to buttress this point is Jeane a Canadian from Quebec, migrated to India in the case of performing a mandatory military service until he retired and continued to live in India. He took up a teaching job in a college and continued to live in India without expressing the slightest desire to go back to Quebec, clearly, Jeane’s domicile by habitation is India.

A scenario may also arise where a person after living in India for about one year will make an application in a prescribed manner to a designated government department expressing the desire to take India as his domicile.

The above instances of domicile by choice are governed by the provisions of Sections, 9, 10, 11, 12 and 13 of the Succession Act of 1925.

DOMICILE BY OPERATION OF LAW

The above form of domicile is also called domicile by dependence. It is the instrumentality of the law that will lead to ascertaining where is the domicile of the person in question This arises where the domicile of a person is determined by the domicile of another person.

The Act recognized three (3) categories of persons as persons whose domicile may be classified and determined under this heading. These persons are:

1. minors,
2. persons of unsound mind, and
3. married women.

The domicile of a minor including an adopted child is by the provision of Sections 14 and 17 of the Succession Act, 1925 dependent on the domicile of the parents and maybe interwoven as the case in domicile by origin. However a child’s domicile may be distinct from that of his parents if:

1. He is married.
2. He is under the appointment or the service of the government of India.
3. With the consent of his parents, he had set up a business.

The domicile of a person under legal disability particularly unsound mind is by the provisions of Section 18 of the Succession Act, 1925 dependent on the domicile of the following persons:

1. He is a guardian,
2. Spouse if married, and
3. Parents.

Married women by virtue of marriage acquire the domicile of their husbands. Her domicile shall continue to rely on the changes to the domicile of her husband through the subsistence of her marriage.

It follows therefore that only two instances can lead to cessation of a married woman’s domicile, if a court of competent jurisdiction grants a decree of dissolution of marriage between the woman and her spouse automatically her domicile shall no longer be dependent on that of the husband, likewise where the husband is serving a prison term the reliance on the husband’s domicile abates until he is released from the prison.

Illustration: Advika married Hannah since 2011, they had lived together in Prague for the eight years of their marriage while they are both Indians from Bombay.

Advika had always cherished the years and the memories of living in Pakistan but maintains that if the occasion arises he will go back to India and broker a partnership with Bajaj a company in India.

From the above illustration notwithstanding the supposed comfortable life Advika and Hannah are living in Prague, the domicile of Advika is India. It follows that Hannah’s domicile due to marriage in India.

Also from the above scenario, if the couple had children by origin and dependency the domicile of the children shall be India. If in the cause of living in Prague Advika is tried and convicted for an offence and subsequently imprisoned even if the prison term served is as short as one day the domicile of Advika from which that of Hannah is determined shall abate until he is out of prison.

THE LAWS REGULATING DOMICILE

The justice of this discussion will not be served if the relevance of domicile is not discussed pertaining to succession and administration of an estate.

In the administration and succession of an estate the law is trite that the doctrine of lex situs and lex domicile determines how the immovable and movable properties of a deceased who died intestate will be distributed.

The doctrine of lex situs simply posits that in succession the law governing the jurisdiction where an immovable property is situate shall govern the succession and administration of such immovable property upon the demise (intestate) of the owner while lex domicile posits that the law of the last domicile of a deceased shall be relied upon in the distribution of his movable properties where he dies intestate.  See section 5(1) and (2) of the Succession Act of 1925.

CONCLUSION

The importance of domicile as a principle of law cannot be overemphasized. It such a notorious principle of law and the mainstay upon which the majority of the property rights of an individual in the administration and succession of an estate may be ascertained.

The striking point in the entire discussion above is the fact the mere living in a given place in the absence of positive and compelling evidence signifying the person’s intendment to live indefinitely in the place renders the presumption of domicile invalid.

Unlike in most principles of law where minors are classified as persons under legal disability as such their rights are subsumed or enforceable through their guardian (and next friend) the doctrine of domicile went ahead to recognize instance where a minor’s domicile will be determined without recourse to the domicile of his parents.

It is highlighted herein that with the global trends and social advancement the special stratification of the domicile of an illegitimate child should be revisited as such stratification may be viewed as an infringement of the rights of the child.

A discrimination based on the child’s circumstances of birth which the child has no control of, let the law grant every child the same form of domicile irrespective of gender or circumstances of birth.