The term ‘Domicile’ is not defined in the constitution. Ordinarily, it means a permanent home or place where a person resides with the intention of remaining there for an indefinite period. A person cannot have more than one domicile. The concept of domicile has been explained by a distinguished American Judge, Oliver Wendell Holmes J, “the very meaning of domicile is the technically pre-eminent headquarters that every person is compelled to have in order that certain right and duties that have attached to it by the law may be determined”
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.
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.
Hence, the concept of domicile is important while determining the distribution of property after the death of a person
General principles of Domicile or Characteristics of Domicile:
Under both Indian and English Private International Law, there are four general rules in respect of domicile.
No person can be without a domicile:
This rule is based upon the practical necessity of connecting every person with some legal system by which questions affecting his family relations and family properties are to be determined.
The domicile is secured of every individual as soon as he/she is born. The rule of granting domicile is the domicile of his father if the child is legitimate, the domicile of the mother if illegitimate, and domicile of the father at the time of father’s death if posthumous. This method of obtaining domicile by birth is called the domicile of origin. It is involuntary. Domicile of origin prevails until a new domicile has been acquired. But the moment a person loses his acquired domicile, the domicile of origin springs back to him.
No person can at the same time have more than one domicile:
At any given time through dual citizenship is permitted by several countries. But domicile signifies a connection with a territorial subject to a single legal system of law.
In India, the domicile is of whole India and not of the individual state. In federal countries like the USA, Canada, Australia, the domicile is of a particular state, and not of the country as a whole.
To acquire a new domicile, that person has to show his residence in the country whose domicile is sought and intention to stay in that country permanently or indefinitely.
An existing domicile is presumed to continue until it is proved that a new domicile has been acquired.
The burden of proving a change of domicile lies invariably on those who allege that a change has occurred. If the evidence adduced is conflicting or is not convincing, then the court has to decide in favour of existing domicile.
Domicile denotes the connection of a person with a territorial system of law
It is necessary to connect a person with some legal system to regulate his legal relationships.
Case Law:
In D. P. Joshi v. Madhya Bharat, AIR 1955 SC 334 case a private medical college in Indore known as the Mahatma Gandhi Memorial Medical College was taken over by the Government of State of Madhya Bharat. The State Government brought a rule under which all students who were having domicile of the State of Madhya Bharat (Bonafide Residents of Madhya Bharat), were exempted from “capitation fees” and all other students who were not having domicile of Madhya Bharat were charged with capitation fees. The writ was filed, before the Supreme Court of India under Article 32 of the Constitution of India, against the above-mentioned rule of the Madhya Bharat Government claiming that the rule was violating the right to equality enshrined under the Constitution of India. The main question before the court was whether, in India, domicile can be only of the country as a whole, or whether there can be domicile of a particular State of India.
It was held by the Court in the majority that the above-mentioned rule was not violative of the Fundamental rights enshrined under article 15. The court held by majority that “Place of Birth” and “Place of Residence” are two different and distinct things both in facts and law and the imposition of capitation fees was based on “Place of Residence” rather than “Place of birth” and article 15 deals with discrimination based on “Place of birth” and it can’t be read as “Place of residence”. The court further held that the rule was also not violative of Article 14 because the classification was just and reasonable because it was based on a ground which was a primary duty of state i.e. to encourage education within its geographical boundaries. Court also held that domicile of India is domicile of the State also.
There was a dissent note by one judge Justice Jagannathas, who held that though “place of birth” and “place of domicile” were two different things but there is no such place for regional domicile in Indian law and under the given circumstances the phrase original domicile in Madhya Bharat is meant to convey the “Place of Birth” and thus this rule primarily offends Article 15 of the Constitution and such distinction can also be not termed reasonable under article 14 of the constitution.
Thus by the majority, the writ was dismissed and it was held by the majority that the rule of the Madhya Bharat government was not in contravention with the constitutional norms.
Other Similar Case Laws:
Kumari N.Vasundara v. State of Mysore (AIR 1971 SC 1439)
Dr. Pradeep Jain v. Union of India AIR (1984 SC 1420)
In all these cases the court observed that the word domicile was used to convey the idea of an intention to reside permanently or indefinitely for the purpose of admission to medical or other technical institutions within a state and not in the technical sense in which it is used in private international law.
Court also held that the states have independent power to make laws with respect to marriage, divorce, succession, etc. they may create a different legal system for the purpose of domicile.
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.
These types are discussed in detail in the next articles. Domicile may also be classified as domestic domicile, foreign domicile, national domicile, state domicile, county domicile, or municipal domicile.
Domicile and Indian Succession act, 1925:
Part II of the Indian Succession Act, 1925 deals with domicile of a person for taking decision of succession under the Act. According to Part II of the Act, Part II shall not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jain.
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.
Illustrations :
- A having his domicile in India, dies in France, leaving moveable property in France, moveable property in England, and property both moveable and immoveable, in India. The succession to the whole is regulated by the law of India.
- A, an Englishman, having his domicile in France, dies in India, and leaves property, bull moveable and immoveable, in India. The succession to the moveable property is regulated by the rules which govern. in France, the succession to the moveable property of an Englishman dying domiciled in France, and the succession to the immoveable property is regulated by the law of India.
In Sankaran Govindan v Lakshmi Bharati, AIR 1964 Ker 244 case, before the Kerala High Court, the facts were: Dr. Krishnan had lived in England from 1920 to 1950, in which year he died intestate (i.e. without leaving a will) in England, He had built up a sizeable medical practice at Sheffield, where he had bought a building to house his surgery. The Court came to the conclusion that he had died domiciled in India, and the question to be determined was whether the heirs to the Sheffield property were to be reckoned by Indian law (lex domicilli) or by English law (lex situs). The learned Judge came to the conclusion that as immoveable property is governed by lex situs, the English law of succession applied to the Sheffield property. The Judge further observed that whether a particular property is moveable or immoveable is also to be determined by the lex situs, i.e. English law in the present case.
Conclusion:
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.
Test Your Understanding:
- What is domicile?
- Give importance of domicile.
- How is domicile differentiated from residence?
- What are the characteristics of domicile? or What are the general principles of domicile?
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