The concept of Domicile plays a necessary element in having the ownership of their property, taxes, will, their childbirth, and, also their marriage validity. Domicile means a permanent home or place where a person resides with the intention of remaining there for an indefinite period. The domicile is secured of every individual as soon as he/she is born. This domicile may change due to domicile by choice or domicile by the operation of the law. Domicile plays an important role in the writing of Will, intestate succession and succession planning. The Indian Succession Act, 1925 provides that succession to immovable property in India is to be regulated by the law of India whenever a person has domiciled in India at the time of his death. The object of determining a person’s domicile is to connect that person with some legal system for certain legal purposes.

Domicile by operation of law is also called domicile of dependence means the domicile of dependent persons, (e.g., minors), whose domicile is dependent on, and changes with, the domicile of some other person (e.g., the minor’s parent) The three categories of persons whose domicile is ascertained in this manner under the Indian Succession Act are minors, married women and insane persons. In General at Common Law, dependents, that is, married women, minors and mentally deficient persons were regarded as incapable of acquiring a domicile on their own, and their domicile followed that of the person they were regarded as being dependent on. According to Section 7 of the Indian Succession Act, 1925, 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.

Domicile of Minors (Ss. 14 and 17)

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 17: Minor’s Acquisition of New Domicile

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

The domicile of a minor follows that of his parent i.e. of the father if the minor is legitimate (s. 7) and of the mother if the minor is illegitimate (s. 8). If the father dies during the minority of his child, the minor’s domicile continues to be of the father. This is not according to English law where if the father dies before the child attains majority, if the child lives with the mother, his domicile is and changes with hers.

According to Section 14 of the Act, a minor cannot acquire a new domicile, but his domicile follows the domicile of his parent from whom he derived his domicile of origin. However, the minor’s domicile does not change with that of his parent in the following three cases, namely :

• if he is married; or
• if he holds any government office or employment; or
• it he has set himself up in any distinct business with the consent of his parent.

The domicile of the adopted child is the domicile of the adopting parent.

In Mst Allah Bandi v. Union of India, AIR 1954 All 456 case, the Courtheld that a minor did not change domicile by migrating with her parents to Pakistan if the minor was married and the minor’s husband remained in India.

In Sharafat Ali Khan v. State of Uttar Pradesh, AIR 1960 All 637 case, the petitioner was born in India, but went to Pakistan with his maternal uncle at the time of partition. His father who was domiciled in India died and to see his mother he came to India on the basis of a permit issued by the High Commission of India in Pakistan. On expiry of the period of permit, he was served with a notice to leave India, which was challenged before the Allahabad High Court. It was contended that during his minority, he cannot change his domicile and his father being domiciled in India, he is entitled to continue to reside in India. The plea was accepted.

Domicile of Married Women (Ss. 15 and 16)

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. Thus, if they are separated by the sentence of a competent court, i.e. by divorce or by judicial separation. But if the marriage is void from its inception the wife will not have changed her domicile by virtue of such void marriage. If, however, the marriage is voidable the wife will have acquired her husband’s domicile until the marriage is declared void.

By marriage, a woman in India acquires the domicile of her husband, and as long as she is married to him, it follows the domicile of her husband, i.e., she automatically changes her domicile whenever her husband changes his. In other words, a married woman is deemed incapable of having an independent domicile of her own. However, there are two exceptions to the above rule, and in the following two cases, the wife’s domicile does not follow that of her husband, viz. :

• when they are separated by the sentence of a competent Court; or
• (ii) if the husband is undergoing a sentence of transportation (i.e. imprisonment)

The English law on the point was exactly the same as above until 1st January, 1974. Under the Domicile and Matrimonial Proceedings Act, 1973, a wife enjoys full freedom in choosing an independent domicile.

In Puttick v. A.G., FD 1980 case, the petitioner , a German national with a German domicile of origin ,was arrested in German and charged with a number of serious offence there, while on bail , she absconded and using an illegally obtained passport from German national, come to England and married an English man in1975. The question before the court was whether she had acquired an English domicile. It was held that rule of unity of domicile of husband and wife had been abolished by the Domicile and Matrimonial proceedings Act,1973 and that , therefore she did not acquire a domicile in England. The court further held that she did not and could not acquire a domicile of choice in England as she was staying England to avoid trial in Germany and not to setup a permanent home the illegal entry and residence according to the court, barred her from acquiring an English Domicile of choice.

The common law countries earlier followed English Common Law Rules. The rule that married women had the domicile of their husband has however, been abolished in Australia, Canada, the Republic of Ireland, and New Zealand so that in all these countries, a, married woman is treated as having an independent domicile like any other person.

In Bell v. Kennedy Bell, 1868 L.R.S.C Divi 307 case, Bell was born in Jamaica of Scottish parents, his domicile of origin being Jamaica. He was educated in Scotland, but returned to Jamaica on attaining majority about 14 years later he returned to Scotland without any intention of returning to Scotland when his wife died. After her death he succeeded in locating a suitable estate which he purchased and it was admitted that at the time of the trial he had acquired a Scottish domicile but the question in the case was whether he was domicile in Scotland at the time of his wife death it was held that Bell was domiciled in Jamaica at the time of his wife’s death. Although he had left Jamaica for good and been residing in Scotland looking for a suitable place to settle down, evidence showed that at the time of his wife’s death, his mind was vacillating with regard to the future home. It was held therefore that since he had not at that time acquired a Scottish domicile of choice; he retained the Jamaican domicile of origin.

Domicile of Lunatic/Insane (S. 18)

Section 18: Lunatic’s Acquisition of New Domicile. (S. 18)

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

An insane person, like a minor, cannot acquire a new domicile, except by following the domicile of another person under whose care he is. Thus, if the lunatic is a minor, his domicile will charge with that of his parent; if she is a married woman, with that of her husband.

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. Thus, in the absence of proof of domicile this section raises a presumption of Indian domicile.

Rule of Private International Law:

Intestate Succession to movable property is to be distributed according to the law of the domicile of the intestate at the time of his death. This law determines the class of persons to take, the relative proportions to which the distributees are entitled, the right of representation, the rights of a surviving spouse and all analogous questions. In relation to immovable property, the law of situs will apply, no matter where his/her domicile may have been.

Conclusion:

A domicile by operation of law is a domicile that the law vests in a person without taking into consideration a person’s residence or intention to change residence.  Here an individual cannot exercise his/her freedom of right.  A domicile by operation of law is the domicile that is imposed by law. Domicile by operation of law is also called domicile of dependence means the domicile of dependent persons. The three categories of persons whose domicile is ascertained in this manner under the Indian Succession Act are minors, married women and insane persons. The domicile of a minor follows the domicile of the parent from whom he derived his domicile of origin. By marriage a woman acquires the domicile of her husband, if she had not the same domicile before. An insane person cannot acquire a new domicile in any other way than by his domicile following the domicile of another person.