The domicile is secured of every individual as soon as he/she is born. The domicile obtained due to birth is called domicile of origin. 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 question of domicile has been considered in several decisions arising under the Indian Divorce Act 1869, under which a court only had jurisdiction to grant matrimonial relief if the parties were domicile in India. In this article, we shall study the Domicile of choice.
Every individual person can acquire a domicile of choice by combination of (I) actual residence in particular place, and (II) intention to remain there permanently or for an indefinite period. On attaining the age of majority, one has the liberty to take and bear responsibilities. He also has the liberty to make his own choice of domicile. A person of a sound mind who is a majority by age can choose to acquire the domicile of a place of his choice when he voluntarily decides to live indefinitely in a place. Sections 9 – 13 of the Indian Succession Act, 1925 deals with domicile of choice.
Requisites for Domicile of Choice:
Residence:
There must be a freely chosen residence and not prescribed or dictated by any external necessity such as the duties of an office, the demand of creditors or the relief from illness. The residence in a country for the purposes of the law of domicile is a physical presence in that country as an inhabitant of it.
The length of residence is not the sole criterion of domicile and the brevity of residence is no obstacle to the acquisition of domicile if the necessary intention exists. For instance, if a person leaves the place of his present domicile with a view of settling in another country, then the moment he sets foot in that country he acquires a domicile there.
Intention:
Intention must be for residence not for a limited period or particular purpose, but general and indefinite in its future contemplation. The residence and intention must concur, but it does not mean they must be in unity of time in their concurrence. The intention may either precede or succeed, the establishment of the residence.
Intention to settle down in a country must be free and voluntary. In certain circumstances, it may not be so. The Indian Succession Act, 1925, Explanation to S.10 expresses it thus: “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 9: Continuance of Domicile of Origin
The domicile of origin prevails until a new domicile has been acquired.
In Sondur Gopal v. Sondur Rajni, 15 July, 2013 case, where Hindus, whose domicile of origin was India, went to Sweden where they acquired Swedish nationality, and then to Australia, but there was no evidence that they had intended to make Australia their permanent home. The Apex Court opined that the domicile of origin prevails until not only another domicile is acquired but it must manifest intention of abandoning the domicile of origin. Circumstances does not establish intention of the husband to reside permanently in Australia. The wife shall follow the domicile of husband is rendered academic and both the husband and wife are domicile of India and, hence held that both shall be covered by the provisions of the Hindu Marriage Act, 1955.
In Cramer v. Cramer, 379 P.2d 95 (1963) Alaska case, a woman with a French domicile of origin came to England intending to remain here and marry an Englishman, who was already married, did not acquire an English domicile of choice. Her intention to remain was conditional on both herself and her proposed husband obtaining a divorce and, on their relationship, continuing. She had conditional intention. Hence, she didn’t get domicile of England.
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 therein the civil, military, naval or air force service of Government, or in the exercise of any profession or calling.
- A, whose domicile of origin is in England, proceeds to India, where he settles as a barrister or a merchant, intending to reside there during the remainder of his life. His domicile is now in India.
- A, whose domicile is in England, goes to Austria, and enters the Austrian service, intending to remain in that service. A has acquired a domicile in Austria.
- A, whose domicile of origin is in France, comes to reside in India under an engagement with the Central Government for a certain number of years. It is his intention to return to France at the end of that period. He does not acquire a domicile in India.
- A, whose domicile is in England, goes to reside in India for the purpose of winding up the affairs of a partnership which has been dissolved, and with the intention of returning to England as soon as that purpose is accomplished. He does not by such residence acquire a domicile in India, however, long the residence may last.
- A, having gone to reside in India in the circumstances mentioned in the last preceding illustration, afterwards alters his intention, and takes up his fixed habitation in India. A has acquired a domicile in India.
- A, whose domicile is in the French Settlement of Chandernagore, is compelled by political events to take refuge in Calcutta, and resides in Calcutta for many years in the hope of such political changes as may enable him to return with safety to Chandernagore. He does not by such residence acquire a domicile in India.
- A, having come to Calcutta in the circumstances stated in the last preceding illustration, continues to reside thereafter such political changes have occurred as would enable him to return with safety to Chandernagore, and he intends that his residence in Calcutta shall be permanent. A, has acquired a domicile in India.
In Michael Anthony Rodrigues v. State of Bombay, AIR 1956 Bom 729 case, Michael born in 1918 in Goa of parents having Goan nationality (Goa was under Portuguese rule at that time) came to Bombay in 1927 where his father had established a tailoring business for forty years. Since that time Michael never went back to Goa. He was educated in Bombay and joined his father’s business. He joined the Royal Indian Armed Forces In 1946. After his discharge from the Army, he gave Bombay as his permanent address. Thereafter he lived in Bombay and in 1948 he started back his father’s business. His name was also entered in the municipal rolls as a voter. On these facts, the Bombay High Court held that he had acquired a domicile of choice in Bombay and had abandoned his Goan domicile of origin.
The length of residence is not the sole criterion of domicile and the brevity of residence is no obstacle to the acquisition of domicile if the necessary intention exists. Prisoners, however long the term of imprisonment may be, will not be enough to confer domicile of choice. He retains his existing domicile.
In White v. Tennant, (31 W. Va. 790) case, Michael White moved his home from West Virginia to Pennsylvania under the family settlement, but the same day crossed back to take care of his wife who was sick with typhoid. He used to visit West Virginia daily to take care of his wife. He then caught the disease and died in West Virginia after two weeks after he left West Virginia. His wife recovered and her father, Tennant (Defendant), was appointed an administrator of Michael’s estate. Under the law of West Virginia, Michael’s wife would receive all her husband’s personal property by intestate succession. Under Pennsylvania law, she would receive only half, and his immediate family would get the other half. White (Plaintiff), the brothers and sisters of Michael, sought to set aside the West Virginia distribution of his estate, claiming that Michael was domiciled in Pennsylvania. The question arose concerning which state would be considered his domicile for purposes of intestate succession. The court observed that he left West Virginia to settle at his home in Pennsylvania with the intention to settle in Pennsylvania. The court held that he was domiciled in the state of Pennsylvania.
In Central Bank of India v. Ram Narain, AIR 1955 SC 36 case, the Supreme Court cited with approval Craignish v. Hewitt in which it was held that domicile of choice is acquired if a person has established a fixed habitation in a place without any present intention of removing from it.
In Yogesh Bhardwaj v. State of Uttar Pradesh, AIR 1991 SC 356 case, the Court observed that a domicile of choice is a combination of residence and intention. Residence, which is a physical fact, means bodily presence as an inhabitant. Such residence must be combined with an intention to reside permanently or for an unlimited time in such place. Even a residence for a short period would suffice if it is coupled with requisite intention.
In Louis de Raedt v. Union of India, AIR 1991SC 1886 case, the Court held that mere residence, even for ten years, is not enough if it cannot be established that the porosities had the requisite animus manendi, the intention to live permanently or for an indefinite period.
In Plummer v. Inland Revenue Commission, [1987] BTC 543 case, the taxpayer had an English domicile of origin. She spent the majority of each year in England, where she was being educated. However, she spent more than three months of each year Guernsey, which had become her family home. Hoffman J held that, despite the taxpayer’s intention of residence in England, her domicile of origin, she could acquire a domicile of choice in Guernsey if she could show that this was her chief residence. This she was unable to do. She had not yet settled in Guernsey. Accordingly, she retained her English domicile.
In Hoskins v. Mathews (1856) 8 De GM & G 13 case, a 60-year-old, English domiciled person had an injury went to Florence (Italy) solely because he thought that the climate of Italy might benefit his health. He lived there throughout the rest of his life and died there at the age of seventy. The court held that he was domiciled in Florence as “in settling there he was exercising a preference, and not acting upon a necessity.”
In Kedar Pandey v. Narain Bikram sah, AIR 1966 SC 160 case, the question before the Supreme Court was whether Narayan Bikram Shah had been domiciled in India in 1949. His father was domiciled in Nepal, Narayan Shah had his domicile of origin there. Narayan Shah born in Benaras, India and received his education in India. After education, he lived in Ram Nagar and continued to live there after the death of his father. Narayan Shah and his brother. During the suit and subsequently also he continued to manage properties in India. After partition from family, he and his wife acquired immovable property, including land in Patna and several other places. In 1949, an Indian passport was issued to him in which he described himself as an Indian citizen and domicile and resident of Ram Nagar. He went to Nepal only once. After 1953 he never went to Nepal. He had married an Indian girl. All his children were educated in India. Before the establishment of the Gram Panchayat, he was the president of the Union Board. His name was entered into the voter’s list of Ram Nagar constituency. In 1957 general elections he contested from the Ram Nagar constituency. The Supreme Court said that taking into account all the events and circumstances of Narayan Shah’s life, it was clearly established that long before 1949, Narayan Shah had acquired a domicile of choice in India.
In Satya v. Teja Singh, AIR 1975 SC 105 case, where a person resided at Nevada for 30 days and claimed to have obtained the domicile of that country and obtained a divorce decree against his wife who was residing in India. It was held in that case that the husband’s intention was only to get a divorce in another country and had no intention to make that place his permanent home. The decree of Nevada court was not recognized.
In Goods of Raffenel case, one Madame Raffenel, widow of a French naval officer, had her domicile of origin in England. She had her domicile of choice in France. She embarked at Calais on a cross- channel streamer, with the intention of leaving France for good. She was taken ill before the streamer could sail and had to spend several months in Calais, where she died. The court held that she died domiciled in France, as at the date of her death she had not abandoned her French domicile, though she had an intention to do so. However, had she sailed off the French territorial waters, her English domicile of origin would have revived.
Section 11: Special mode of acquiring domicile in India.
Any person may acquire a domicile in 1 [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 11 lays down a special mode for acquiring domicile by making and depositing in some office in India a declaration to acquire such domicile by a person who shall have 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.
Residing in a foreign country and the intention to make it his permanent place has the effect of acquiring a domicile of choice. This section lays down an exception to this rule. A consul or an ambassador acquires no new domicile in the country in which he resides for the purpose of his office. His own family or his servant who follows him and resides in the foreign country also does not acquire a new domicile, the reason being that there is no intention on the part of such person to make the foreign country his home. But if a man is already domiciled in a foreign country and is appointed an ambassador or consul in that country, he does not lose it by accepting the appointment.
A soldier does not acquire a domicile in the place where he is stationed if there is nothing to qualify his residence there
Section 13: Continuance of new domicile
A new domicile continues until the former domicile has been resumed or another has been acquired.
A domicile of choice continues until it is abandoned. It is divested only when the country of domicile has been actually abandoned with the intention of abandoning it for ever. According to English law, it is not necessary that another domicile should be acquired. In such a case, the domicile of origin which was in abeyance automatically takes effect. But according to this section, the domicile of choice will continue until the domicile of origin is resumed both animo et facto. According to this section, a person who acquired a domicile of choice, cannot resume his domicile of origin by merely abandoning the former but he has got to do something further to resume his domicile of origin.
Abandonment of Domicile of Choice:
When both conditions- factum and animus cease to exist, the domicile of choice is abandoned. Just as mere intention to settle or mere residence in another country is not enough to acquire domicile, similarly, mere intention to abandon or mere residence in another country is not enough for abandonment of domicile of choice. Thus, the domicile of choice is abandoned when a person gives up residing in the country of the domicile of choice and he has no intention to reside there indefinitely.
Difference Between a Domicile of Origin and a Domicile of Choice:
The difference between a domicile of origin and a domicile of choice could be summarized as:
- Domicile of origin comes into existence by operation of law and it gets by birth, where as domicile by choice is acquired by the force volition of the person concerned.
- There is a stray presumption of continuance of domicile of origin.
- Domicile of origin cannot be abandoned easily as it is a creature of law.
- Domicile of origin is never lost, when a domicile of choice is acquired, it only remains in abeyance.
Conclusion:
On abandoning a domicile of choice, a person acquires either a new domicile of choice or his /her domicile of origin will revert back to the former domicile. The rule that the domicile of origin will come back to a person who ceases his/her domicile of choice has been criticized by some courts. However, no person can reside in a state without a domicile, and no person can hold more than one domicile at a time. It is possible for a person to be a resident in several countries at the same time. In such a case of dual or multiple residences, the domicile of choice can only be acquired if this can be shown to be the chief residence. In practice, it is very difficult to prove the intention of permanent residence, because it is assumed that every individual retains affection to his/her previous state and plans to return one day. A statement of intention made by the person himself/herself will not be sufficient to attribute a domicile of choice. The intention must be ratified by a conduct to establish a new domicile.
Test Your Understanding:
- What is domicile?
- Explain requisites for a domicile of choice.
- Write short note on domicile of choice.
- Distinguish between domicile of choice and domicile of origin.
- Explain abandonment of domicile of choice.
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