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. In this article, we shall study the 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.
It means the home of an individual’s parents. It does not mean the place where the child was born when the parents were on a visit or journey. It is not a place where a child happens to be born. Thus, the domicile of origin is different from the actual place of birth. For example, a child born in a marital relationship (legitimate Child) will take the domicile of his/her father, and a child born outside of wedlock (Illegitimate Child) will take the domicile of his/her mother, and domicile of the father at the time of father’s death if posthumous.
Section 6: One Domicile Only Affects Succession to Movables.
A person can have only one domicile for the purpose of the succession to his moveable property.
Section 7: Domicile of Origin of a Person of Legitimate Birth:
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.
Illustration:
At the time of the birth of A, his father was domiciled in England. A’s domicile of origin is in England, whatever may be the country in which he was born.
At the time of the birth of A, his father was dead and domiciled in England, then A is posthumous child A was in mother’s womb at the time of the death of his father) A’s domicile of origin is in England, whatever may be the country in which he was born.
By the English Law, the posthumous child gets the domicile of the mother at the time of the child’s birth.
Section 8 Domicile of Origin of an Illegitimate Child:
The domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled.
Illustration:
A mother whose domicile is England gives birth to an illegitimate child in India. Then the domicile of origin of the child is in England.
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.
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.
In Kedar Pandey v. Narain Bikram sah, AIR 1966 SC 160 case, the Supreme Court has dealt with the complexity of issues and held that an existing domicile is presumed to be in existence until proved that a new domicile has been acquired, because a person cannot be without a Domicile. Hence, the burden of proving a change in Domicile is variably upon the person who alleges that there has been a change in the status of his Domicile. If the evidence is not conclusive in nature, then the court generally decided in the favour of the existing Domicile which is the Domicile of Origin. In other words, what is required to be established is that the person who alleges to have changes the domicile of origin and had acquired a domicile of choice has voluntarily fixed the habitation of himself and his family in the new country, not for a special or temporary purpose but with the intention of residing there permanently.
In Yogesh Bhardwaj v. State of Uttar Pradesh, AIR 1991 SC 356 Case, the Court obser4ved that the domicile of origin can be transmitted through several generations no member of which has ever resided for any length of time in the country of the domicile of origin. The character of the domicile of origin is more tenacious, and its hold stronger and less easily shaken off.
In Central Bank of India v. Ram Narain, AIR 1955 SC 36 case, the Court held that the domicile of origin, which the law attributes to him , adheres till he acquires another domicile; the domicile of origin adheres to him even if he has left the country with the intention of never returning there till he has acquired a domicile elsewhere by settling in that place with the requisite intention.
Legitimatization of a Child in Other Countries:
To determine an illegitimate child’s domicile, the illegitimate child is first legitimized by a statute. For this purpose, the parent whose relationship is required to be made legitimate must be domiciled in a state that permits such an act. If a father is a resident of a state that permits legitimization by recognition, the fact that the mother and child are domiciled elsewhere will not affect the act of legitimating. Such a legitimization will be recognized in every state. However, if the domicile of the father at the time of the act of recognition is not of the state that implements the act which confers a legitimate status to the child, then the father’s subsequent removal to the latter state will not confer a legitimate status to the child
Conclusion:
Every person is born with a Domicile of origin. It is a domicile received by him at his birth. The domicile of origin of every person of legitimate birth is the country to which at the time of his birth his father was domiciled. Hence, the domicile of origin, though received at birth, need not be either the country in which the infant is born, or the country in which its parents are residing, or the country to which its father belongs by race or allegiance or the country of the infant’s nationality. 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 the posthumous child will be that of the country in which its father was domiciled at the time of his (father’s) death. An independent person is allowed to give up his domicile of origin. But the domicile of origin prevails until new domicile has been acquired.
Test Your Understanding:
- What is domicile?
- Write short note on domicile of origin?
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