These are frequently asked questions about the domicile under the Indian Succession Act, 1925, Types of domicile: domicile of origin, domicile by choice, Domicile by operation of law.
Type – I: Answer in Two or Three Sentences (2 M)
a) What is a Domicile?
Ordinarily, domicile means a permanent home or place where a person resides with the intention of remaining there for an indefinite period.
b) What is the difference between domicile and residence?
Domicile is not the same thing as the residence. Residence implies a purely physical fact, the fact of just being and living in a particular place. But domicile is not only the residence, but it is the residence coupled with the intention to live indefinitely in the place.
c) What is the importance of domicile?
- Domicile in India is an essential requirement for acquiring Indian citizenship.
- 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 concept of domicile is important while determining the distribution of property after the death of a person
d) What are the characteristics of domicile?
- No person can be without a domicile:
- No person can at the same time have more than one domicile:
- An existing domicile is presumed to continue until it is proved that a new domicile has been acquired.
- Domicile denotes the connection of a person with a territorial system of law.
e) What are different types of domiciles?
There are three types of domiciles, as organized under common law and statutes. They are:
- Domicile of origin,
- Domicile of choice or necessary domicile.; and
- Domicile by operation of law.
f) Explain. ‘Domicile is important in case of succession’.
According to Section 5(1) of the Act, 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 and according to Section 5(2) of the Act, the 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.
g) What is domicile of origin?
Domicile of origin or domicile by birth comes into existence as soon as the child becomes an independent person by birth. There are three cases of domicile acquired by the origin. When a child takes birth, he is either legitimate, or illegitimate, or posthumous.
h) What is domicile of legitimate child?
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.
i) What is domicile of illegitimate child under the Indian Succession Act?
According to Section 8 of the Act, the domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled.
j) What is meant by posthumous child?
A posthumous child is a child born after the death of one of their biological parents.
k) What is meant by 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. According to Section 10 of the Indian succession Act, 1925 a man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.
l) What is the 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.
m) What is domicile by operation of law?
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).
n) What is a domicile of a married woman under the Indian Succession Act?
According to Section 15 of the Indian Succession Act, by marriage a woman acquires the domicile of her husband, if she had not the same domicile before. According to Section 16 of the Act, a wife’s domicile during her marriage follows the domicile of her husband.
o) Can ambassador’s son claim Indian Domicile?
A person does not acquire .a new domicile in any country merely by reason of residing as part of the family or as a servant of any ambassador.
Type – II: Write Short Notes on the followings (3 M / 4 M / 5 M)
a) Types of Domiciles:
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. There are three types of domiciles, as organized under common law and statutes. They are:
- Domicile of Origin: Domicile of origin or domicile by birth comes into existence as soon as the child becomes an independent person by birth. There are three cases of domicile acquired by the origin. When a child takes birth, he is either legitimate, or illegitimate, or posthumous. 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. According to Section 8 of the Act, the domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled According to Section 8 of the Act, the domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled.
- Domicile of Choice: Every individual major 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. According to Section 10 of the act, a man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.
- Domicile by Operation of Law: 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.
b) Domicile of origin:
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 of origin or domicile by birth comes into existence as soon as the child becomes an independent person by birth. There are three cases of domicile acquired by the origin. When a child takes birth, he is either legitimate, or illegitimate, or posthumous.
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. According to Section 8 of the Act, the domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled
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. According to Section 8 of the Act, the domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled.
The domicile of origin remains with an individual until another has been acquired. In order to change it, there must be an absolute removal from their present residence coupled with an intention to reside in another place. A mere intention to remove is not sufficient. Such an intention to remove must be brought into effect. On moving to a new place he/she acquires a domicile of choice and loses domicile of origin. But if such person returns with an intention to reside in his/her prior residence then he/she will get back his/her domicile of origin.
c) Domicile of Choice:
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.
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.
According to Section 10 of the act, a man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.
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.
d) Domicile by Operation of Law:
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.
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, (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 14 of the Indian succession Act, the domicile of a minor follows the domicile of the parent from whom he derived his domicile of origin. According to Section 14 of the act, by marriage a woman acquires the domicile of her husband, if she had not the same domicile before. According to Section 18 of the Act, An insane person cannot acquire a new domicile in any other way than by his domicile following the domicile of another person.
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