INTRODUCTION

It has been universally recognized that questions affecting the personal status of a human being should be
governed constantly by one and the same law, irrespective of where the facts giving rise to the questions may
have occurred. But unanimity goes no further. In England it has been long settled that questions affecting status
are determined by the law of the Domicile of the porosities and that, broadly speaking, such questions are those
affecting family relations and family property. To be more precise, the following matters are to a greater or
lesser extent governed by the personal law; the essential validity of a marriage; the effect of marriage on the
proprietary rights of husband and wife. Jurisdiction in divorce and nullity of marriage, though only to a limited
degree, legitimacy, legitimating and adoption; wills of movables and intestate succession to movables.

The concept of Domicile in Common Law and Civil Law are distinct and different from each other to a
great extent. In Common Law Domicile means equivalent of a person's permanent residence and in civil law it
means habitual residence. Though the common law variant may seem very simplistic, there are two variant of
the Domicilee Theory, they are Domicile of Origin and Domicile of choice. Domicile of Origin is
communicated through operation of law to each person at birth, i.e., Domicile of the father or the mother,
dependent on the legitimacy of the offspring. Domicile of Choice is that Domicile that any person of full age is
free to posses instead of the one he already possesses. The English rule is marred by rules that are very
complex, and often leads to uncertainty in its outcome.

According to WW Cook, the “single conception theory” English law takes the view that any test that
determines place of a person's Domicile must remain constant no matter what the nature of the issue may be
before the court.

GENERAL RULES
There are five general rules that apply to the concept of Domicile they are

1) No person shall be without Domicile. To bring into effect this rule the law assigns to every person a
Domicilee of origin to every person at birth, namely to a legitimate child. The Domicile of the mother to
an illegitimate child and to foundling place where the child is found.
2) A person can never have two Domicile. This is to ensure that several factors and Domicilees don’t hurt
his life. Therefore for practical reasons it is necessary that a person shouldn't posses more than
Domicile. This is also called the law of the “Law district”.
3) The fact that a Domicile might signify a connection with a single system of law, but the same law might
not apply uniformly to all the classes of that people of that particular Domicilee.
4) There is always a presumption that a Domicile is ever continuing, the burden of proof lies on the
porosities to prove that it has changed. This factor may have a decisive effect on his case, as the law
 applied will change drastically.
5) Subject to other statutory exceptions the concept of Domicile shall always be decided according to the
English concept notwithstanding any other foreign concept of law.

THE BURDEN OF PROOF

An alien living in England under a certificate of registration is liable to deportation does
not prevent him from acquiring an English Domicile of his choice, or deprive him of a Domicile already
acquired. Therefore a person of foreign origin living in a country for a time which qualifies him for a Domicile
of that county may acquire the Domicilee of that country even though he is still The burden of proof that lies on
those who allege a change of Domicilee varies with the circumstances. In this connection there are two
observations that may be made. First, English Judges have taken the view that it requires far stronger evidence
to establish the abandonment of a Domicile of origin in favor of fresh Domicile than to establish the
abandonment of a Domicile of origin in favor of a fresh Domicilee than to establish a change from Domicilee to
another. And by way of contrast, there is authority for the view that a change of Domicile from one country to
another under the same sovereign. It is not to be lightly inferred that a man intends to settle permanently in a
country where he will possess the status of an alien, with all the difficulties and conflict of duties that such a
status involves.

CHANGE OF DOMICILEE AND CHANGE OF NATIONALITY

It is important to emphasize that nationality and Domicile are two different conceptions and that a man may
change the latter without divesting himself of his nationality. The mere fact that holds the citizenship of that
foreign country.

DOMICILEE OF DEPENDENTS
Minors, married women and mentally disordered persons, such as idiots and lunatics, fall in the category of
dependents. In respect of Domicilee the word ‘Dependent’ is applied to a person in general who is incapable of
having a Domicilee of his choice. The general rule is that a dependant person has the Domicilee of the person
he is dependent on. The Domicilee dependency, as it sometimes is called, is an imposed Domicilee and it
changes only when the person on whom the dependent is dependent changes his Domicilee. A dependent person
can’t abandon his dependency. Thus, a wife who lives separately from her husband, a minor who ran away from
his parents and a lunatic who live s in another country cannot claim a Domicilee of their own. It is only in one
case that a dependent can get a new Domicilee. This happens when a female minor marries. But then what she
acquires is the Domicilee of her husband. Where the person on whom they are dependent on dies or if they have
no one to depend on, then the dependent’s Domicilee cannot change at all. These statements of law in respect of
English law have to be read subject to certain qualifications, since the Domicilee and Matrimonial Proceedings
Act, 1973 had made some changes relating to married women and minor children.

Under English private international law, the capacity to acquire new Domicilee is governed by English law and
not by the law of the previous Domicilee or by law of the intended new Domicilee.1 There are basically three
classes of dependents, viz., minors, married women and mentally disordered persons.

MARRIED WOMEN:
In Gray v Formosa2, a rule was underlined that ‘Domicilee of a married woman is, during covertures, the same
as, and changes with the Domicilee of her husband’, this was the basic common law principle of unity of the
person of husband and wife. According to Blackstone, “By marriage, the husband and wife are one person in
law, i.e., the very being and legal existence of woman is suspended during the marriage, or at least is
incorporated and consolidated into that of husband, under whose wing of protection and cover she performs
everything… Upon this principle of union of person in husband and wife, depends almost all the legal rights,
duties and disabilities that either of them acquires by the marriage.” This rule is also expressed by saying that
the husband’s actual and the wife’s legal Domicilee are one, wherever the wife maybe residing. By a valid
marriage, the Domicilee of the wife becomes that of the husband, and the fact that married couple is living apart
under separate agreement, or a husband has deserted the wife, does not render her free to choose a Domicilee
apart from his.

In Lord Advocate v Jaffery3, one Mrs. Mackinson was married on June 26, 1876 to one Robert Mackinson who
was born in Campbeltown, Aberdeen and at the time of marriage was a Chief Quartermaster in the Navy. On
retiring from the Navy in 1886 till 1893, he lived with his wife in Aberdeen. In 1893, owing to his drunken and
dissipated habits, it was arranged; at the instance of his wife that Mackinson should leave Scotland for Australia
and his passage out was paid by Mrs. Mackinson’s mother. He reached Sydney and for some time remained in
New South Wales. Sometimes before, June 1902, he went to Queensland and resided in Brisbane where he died
on January 1, 1918. On June 2, 1902, he went through a form of bigamous marriage with one Willhemina, with
whom he lived until his death, and from whom he had two children. After his departure from Scotland no
communication passed between him and his wife. In 1915, Mrs. Mackinson, who continued to live in Aberdeen,
filed a petition for divorce on the ground of her husband’s desertion and adultery. Two main questions before
the court were:

1
Re Beaumont, (1893) 3 Ch 490
2
(1963), P. 259
3
(1921) 1 A.C. 146
 a) Whether at the date of Mrs. Mackinson’s petition, Robert Mackinson had acquired a Domicilee in
Queensland,
b) If so, whether Mrs. Mackinson had acquired a derivative Domicilee in Queensland by virtue of the
marriage then subsisting between them.

The trial court was of the opinion that Robert Mackinson acquired a Domicilee in Queensland, but that, in the
special circumstances of the case, wife’s Domicilee remained Scottish; on the latter point the first appellate
court reversed the judgment. The House of Lords affirmed the judgment of the first appellate court. Lord
Dunedin, pronouncing the opinion of House of Lords, quoted the following passage from the opinion of Sir
Cresswell in Yelverton v Yelverton4. “The Domicilee of the husband is the Domicilee of the wife; and even
supposing him to have been guilty of such misconduct as would furnish her with a defense to a suit by him for
restitution of conjugal rights, she could not on that ground acquire another Domicilee for herself.”

If the marriage is void, the wife does not acquire the Domicilee of her husband.5 But if she goes to another
country and lives with a putative husband, she may acquire a Domicilee of choice there.6 But if the marriage is
void on the ground that she was already a wife of someone, she cannot acquire a new Domicilee. Then her
Domicilee will remain that of her lawful husband.7

The rule that the wife’s Domicilee is tagged with that of her husband has been severely criticized. 8 It is evident
that in our contemporary world this is socially most undesirable. Attempts to round of its sharpest corners have
been statutory. The Domicilee and Matrimonial Proceedings Act, 1973 has now repealed the old provisions, and
a wife is now allowed her own separate Domicilee. New jurisdictional rules have been laid down. Thus the
English law had gone much ahead of the suggestion of the Private International Law Committee that a wife was
living separately under a decree of judicial separation should be allowed to acquire an independent Domicilee.

The Domicilee and Matrimonial Proceedings Act, 1973 makes fundamental changes in the Domicilee of the
wife. The rule of unity of Domicilee of husband and wife stands abolished. The act lays down that the wife does
not acquire the Domicilee of her husband merely by virtue of her marriage. Now her Domicilee is to be
ascertained the same way as the Domicilee of an independent person is ascertained. Section 1(1) lays down: “…
the Domicilee of a married woman as at any time after the coming into force of the section shall, instead of
being same as her husband’s by virtue of only if marriage, be ascertained by reference to the same factors as in
the case of any other individual capable of having an independent Domicilee.” The Act came into force on Jan 1
1974. A woman already married on Jan 1, 1974, retains her husband’s Domicilee of dependency (but she retains

4
(1859) 1 S.W. & Tr. 574.
5
White V White, (1937), P. 111; Mehta V Mehta, (1945) 2 All. E.R. 690; De Reneville v De Reneville, (1948), P.100 (C.A).
6
Von Lorang v Adm. Of Austrian Property,(1927) A.C. 641
7
Shaw v Gould, (1868) L.R. 3 H.L. 55.
8
Graveson, 176-77; Wolff, 122; Cheshire, 167.
it, not as a dependent’s Domicilee but as of choice or origin), till she acquires another Domicilee. Sub section(2)
provides , “Where immediately before this section came into force, a woman was married and then had her
husband’s Domicilee by dependence, she is to be treated as retaining the Domicilee in (as a Domicilee of
choice, if it is not also her Domicilee of origin.) Unless and until it is changed by acquisition or revival of
another Domicilee either on or after the coming into force of this section.”9

In the US, the rule of unity of Domicilee of husband and wife is not taken to the logical end to which it was
taken in English law. There, a wife living separate from her husband, separation not amounting to desertion, can
acquire her own independent Domicilee; separation maybe by agreement or by a decree of court.10

In Indian statutory law also does not follow English law. The Indian Succession Act 1925, ss. 15 and ss. 16
incorporate the general rule: on marriage the wife acquires the Domicilee of her husband and during covertures
her Domicilee is the Domicilee of her husband. Then it is laid down that wife can acquire her own Domicilee in
the following cases:

1. If the wife lives separate under a decree of the court.

2. If the husband is undergoing a life sentence.11

Indian courts have been called upon to dwell in the matter in the several different situations like in the case of
Prem Pratap v Jagat Pratap12. Here it was held that the wife’s Domicilee remains that of the husband even if he
deserts her. Then was the case of Rani Saeeda Khautan v State of Bihar13 in the wake of partition. The wife of
one Capt. Kumar Singh Domicileed in India, left with her mother to Pakistan. On 14th May 1950 she visited
India on a permit issued by the Indian Commission in Pakistan. On 23rd July 1950 she was served with a notice
of the Government of India to quit India. In a petition for a writ of mandamus it was argued on behalf of the
wife that she, being the wife of Indian Domicileed person, was Domicileed in India and thus, cannot be asked to
quit India, since by going to another country or by any other act of her she could not, during her marriage’s
subsistence acquire any Domicilee of her own. Her plea was accepted by the Patna High court. Substantially the
Allahabad High court also accepted the plea of the wife. Justice Mallick, referring to s. 16, Indian Succession
Act, 1925 said that during the subsistence of covertures in the Domicilee of the wife is the Domicilee of her
husband.14

It is quite unfortunate to observe that the courts in India tend to blindly follow their English counter-parts, it is
like the persuasive decisions are getting more importance. Even though English precedents are being quietly

9
IRC V Dichess of Portland, (1982) 2 W.L.R. 367.
10
William v Osenton, 232 U.S. 619.
11
R. Dolphin v Robins, (1859) 7 H.L.C. 390
12
1944 All 97
13
1951 Pat 454
14
Smt. Allabandi v Union of India,1954 All. 457
followed, American decisions aren’t given much importance. Our courts should have at least extended the
principle of separate Domicilee to those cases where husband and wife are living separate, or the husband has
deserted the wife.

MINOR CHILDREN
For the purpose of Domicilee the minority in Indian law continues till a person attains the age of 18years while
in English law, under s. 3 of the Domicilee and Matrimonial Proceedings Act, 1973, minority terminates on the
attainment of 16 years.

Domicilee of natural children: in respect of natural children’s Domicilee, the established rules of private
international law are:

a) The Domicilee of a legitimate minor children, if parents have not separated during minority ,
i) Is the Domicilee of the father as long as the as the father is alive and it changes when with the
Domicilee of the father,
ii) After the death of the father it is the Domicilee of the mother so long as the mother is alive and
changes with the Domicilee of the mother;
b) The Domicilee of an illegitimate child during minority is the same as that of the mother and changes
with the Domicilee of the mother;
c) The Domicilee of a minor orphan cannot be changed; and
d) When the minor attains majority he can change his Domicilee.15

Indian law is slightly different from English law in this aspect. Indian law recognizes three exceptions when
minor’s Domicilee does not follow that of his parent:

a) If the minor is married,

b) If the minor holds any office or employment in the service of Her Majesty, or
c) If the minor has set up, with the consent of the parent, any distinct business.

Both English and Indian private international law a child on attaining majority can acquire his own
Domicilee.16 This proposition came for interpretation in Hnderson v Handerson17.

Adopted children: in English private international law there is yet no authority in the Domicilee of adopted
child. The Private International Law Committee suggests that the rule in America should be followed i.e. the
adopted child should have the Domicilee that his adopted parents has. In Indian law, the authority was given
by Madras High Court that the Domicilee of the adopted child is the Domicilee of the adopting parents and

15
Dicey and Morris, Rule 12, p.110; Cheshire, 176
16
Michael Anthony Rodrigues v State of Bombay, 1956 Bom 729
17
(1965) 2 W.L.R. 218
 change with the change in the Domicilee of the adopting parents.18 The question is: what will be the
Domicilee of the adopted child? On marriage the adoptive mother acquires the Domicilee of her husband. If
the mother does not take the child with her, then the child retains the Domicilee that it had before the
marriage of his mother. In case the child is taken care of by the step father and goes to live with his adopted
mother and step father, Domicilee of the adopted child changes with the mother.

Domicilee of minor child after death of parents: In English private international law the Domicilee of a
legitimate child, after the death of the father is the Domicilee of the mother and changes with the Domicilee
of the mother, provided that the child is living with his mother. However this change of Domicilee is not
automatic. Under the Indian law the Domicilee of the legitimate minor child is in the country in which his
father was Domicileed at the time of his death. The Indian law does not say that the Domicilee of the child
whose father is dead will be that of his mother. It is like Indian law fixes the Domicilee of a legitimate child
with that of the father and that of an illegitimate child with his mother. If the father or mother dies then the
Domicilee of the child remains the same as it was at the death of the parent.

In our contemporary world every act of guardianship is weighed on the scales of welfare of children. It is
submitted that the rule should be that the Domicilee of an orphan child may be changed by his guardian with
the prior permission of the court in the country in which the child is Domicileed and further that no court
will accord such permission unless it comes to the conclusion that the change would be for the welfare of
the child.

Domicilee of the child when the parents have separated: If parents are living separately, legally or
otherwise have obtained a decree of judicial separation then the question arises as to the Domicilee of the
child. According to the Domicilee and Matrimonial Act, 1973the Domicilee of the child continues to be that
of the father unless the following things happen:

a) When the child is living with his mother and is not with his father,
b) If he has acquired the Domicilee of his mother by virtue if his having lived with her, then he will
continue to have that Domicilee, even when he leaves his mother, provided he is not living with his
father, and
c) The child will continue to have his mother’s Domicilee even after the death of his mother, if he has
acquired his mother’s Domicilee by virtue of his having his home with his mother, and not with his
father.

It is apparent that in the two latter cases, if the child lives with his father and makes home with him, the
child will acquire the Domicilee of his father. It is to be noted that in case of separation the child does not

18
(1929) 30 M.L.W. 691
 live with his mother, then he continues to have the Domicilee of his father even if he is not living with his
father like living with some relative or local authority or even if the situation is such that the father is not
known.

Indian law has no answer to such a situation. It is submitted that the child will have the Domicilee of the
parent in whose custody he is living, wither under an order of the court or de facto, and t should be that
parent who should have the right to change the Domicilee of the child. In case of disputes between parents,
the interest of the child is the paramount consideration.

Domicilee of Married Minor Child: Before January 1, 1974, the position in English law was that a minor
child on marriage retained the Domicilee of his father or mother, i.e., its original Domicilee of dependency,
while the minor child acquired the Domicilee of her husband. Now under Domicilee and Matrimonial Act,
1973, the position is that a minor child attains capacity to acquire independent Domicilee on marriage,
applying to both males and females. The Indian law is still stuck to the situation before January 1, 1974. The
Domicilee of a female minor on her marriage changes on her marriage to the Domicilee of her husband.19 It
is seen that if the husband is minor and thus, has a Domicilee of dependency of either the father or mother,
then the Domicilee of the minor married female child will be the same as that of her husband and will
change with the change in the Domicilee of her husband. Even when she becomes a widow while being a
minor, her Domicilee will be that of her husband had when he died. She cannot acquire back her pre-
marriage Domicilee of origin. Even when the minor widow becomes a major she would continue to have the
Domicilee of her dead husband, unless she acquires a Domicilee of her choice.

LUNATICS:
In English private international law there is no direct authority on the Domicilee of lunatics. It seems that an
independent person who becomes insane cannot change his Domicilee, as he is incapable of exercising his
will. It seems that even his guardian cannot change it. Thus it seems that the lunatic will retain the
Domicilee which he had when he became a lunatic (i.e. when he began to be legally treated as insane) even
if he goes to another country and settles there.20 In the modern English law lunacy is categorized on the
basis of degrees of mental disorder.

It is submitted that if they have sufficient ability to form the necessary intention, they should be able to
change their Domicilee. It is also submitted that those who are kept under guardianship should also be able
to acquire new Domicilee, if their guardianship thinks it is proper to do so. The guardian court or the court

19
Section 15, Succession Act, 1925
20
Urquhart v Butterfield, (1887) 37 Ch. D. 357; Hepburn v Skirving, (1861) 9 W.R. 764
 of protection should be able to accord permission to the guardian to do so whenever it is thought to be in the
interest of the child.

In Indian law we have a statutory provision in s. 18, Indian Succession Act, 1925 which runs: “An insane
person cannot acquire a new Domicilee in any other way than by his Domicilee following the Domicilee of
another person.” The Act does not specify who this “another person” is. But it seems clear that if the lunatic
is a minor then it is the parent on whom he is dependent and if lunatic is a married woman, then it is her
husband. It is submitted that if the lunatic is a major and has a guardian, then this “another person” should
be guardian of the lunatic. There is no reason why Indian courts should follow the old English decision in
Urquhart v Butterfield21which lays down that a major lunatic’s Domicilee remains static, i.e., it remains the
same as it was at the time when he legally began to be treated as insane.

DOMICILEE OF MARRIED WOMAN

The abolition of dependency

Until 1974 the rule was that the Domicilee of a husband was communicated to his wife immediately on
marriage and it was necessarily and inevitably retained by her for the duration of marriage. This rule was much
criticized as the last barbarous relic of a wife’s servitude and was abolished under Section 1 of the Domicilee
and Matrimonial Proceedings Act. The Domicilee of a married woman at any time on or after 1 January 1974
shall instead of being the same as her husband’s by virtue only of marriage, be ascertained by reference to the
same factors as in the case of any other individual capable of having an independent Domicilee. This means that
a married woman is to be treated as capable of acquiring a separate Domicilee; though in vast majority of cases
she and her husband will, independently acquire the same Domicilee. It is, however quite possible for happily
married spouses to have separate Domicilees as where, for example, a student at an English university who is
Domicileed in New York marries a fellow student Domicileed in England, both intending at the end of their
studies to go and live in New York. The 1973 act also deals with transitional problems of the Domicilee of
dependence of a wife acquired before 1974. A woman married before 1974 who therefore acquired her
husband’s Domicilee on marriage is to be treated as retaining that Domicilee as a Domicilee of choice if it was
not the wife’s own Domicilee of origin, until its changed by acquisition of a new Domicilee of choice or revival
of the Domicilee of origin on or after 1st January 1974. This meant that after that date, the wife’s Domicilee is
not to be treated as dependent on her husband but as her own Domicilee of origin, or of choice until she
acquires a new Domicilee of choice or until her Domicilee of origin revives.

21
(1887) 37 Ch. D. 357
DOMICILEE AND NATIONALITY CONTRASTED
Nationality represents a person’s political status, by virtue of which he owes allegiance to some particular
country; Domicilee indicates his civil status and it provides the law by which his personal rights and obligations
are determined. Nationality depends apart from naturalization, on the place of birth or on parentage; Domicilee
is constituted by residence in a particular country with the intention of residing there permanently. It follows
that a person may be a national of one country but Domicileed in another. At present many countries in Europe
and South America adopt nationality as the criterion of personal laws, whilst the common law jurisdictions of
the commonwealth and the USA, among others, still stand by test of Domicilee.

DOMICILEE OF ORIGIN AND DOMICILEE OF CHOICE

DOMICILEE OF ORIGIN
It is a well known principle that no person can be without a Domicilee. For the practicality in applying this rule
the law confers a Domicilee on every person on birth. This is known as the Domicilee of origin. It continues to
exist as long as the concerned person does not acquire another Domicilee. Even if a person with a view to
acquire another Domicilee gives up his Domicilee of origin, it will continue to exist as long as he does not
acquire a new Domicilee. The moment a person gives up his Domicilee of choice, his Domicilee of origin
revives. Since Domicilee of origin is attributed to every person at birth by operation of law, the basis of
Domicilee of origin is paternity or maternity. According to English private international law legitimate child
born during the lifetime of father has his Domicilee in the country in which his father was Domicileed. A
legitimate child born after the death of the father has Domicilee in the country in which the mother was
Domicileed at the time of his birth. An illegitimate child has the Domicilee in the country in which his mother
was Domicileed at the time of his birth. This is also the position in Indian law except that the legitimate child
born after the death of his father has his Domicilee in the country in which the father was Domicileed at the
time of his death. Thus the Domicilee of origin is not dependent upon the place where a child is born, or on the
place where a child is born, but on the Domicilee of the father or mother, as the case may be. There is only one
exception to his rule, viz; Domicilee of founding is the Domicilee of the country in which he is found.
Domicilee of origin is a creature of law and no person can give it up totally. Every person must have a
Domicilee and the Domicilee of origin continues to exist till a person acquires a new Domicilee. For the revival
of the Domicilee of origin it is necessary that the Domicilee of choice should be abandoned voluntarily. Another
important aspect of the Domicilee of origin is that it automatically revives by operation of law on the
abandonment of the Domicilee of choice, whatever time might have elapsed after its abandonment. This rule
results in arbitrariness and injustice. The Indian Succession Act, Section 13 provides: “A new Domicilee
continues until former Domicilee is has been resumed or another has been acquired. Thus under Indian law of
Domicilee of choice continues until a new Domicilee is acquired or the Domicilee of origin is resumed amino et
facto. In the United States also the rule is different; the previous Domicilee, whether of origin or choice, is
retained till a new one is acquired.

DOMICILEE OF CHOICE
Any independent person may acquire a Domicilee of choice. Whether a person has capacity to acquire a
Domicilee of choice is determined by the law of his existing Domicilee. Under English law, before coming into
force of the Domicilee and Matrimonial Proceedings Act, 1973, a minor, lunatic and married woman had no
capacity to acquire a Domicilee of choice, while under the Indian law a married woman can acquire a
Domicilee of choice under certain circumstances. For the acquisition of Domicilee of choice the following two
conditions must be satisfied 1) Residence in the country of Domicilee of choice and 2) intention to live in the
country of Domicilee of choice permanently. The Indian Succession Act, 1925, Section 10 lay down, “A man
acquires a new Domicilee by taking up his fixed habitation in a country which is not that of his Domicilee of
origin”. Intention may precede the residence, but the coexistence of intention and residence is essential for
acquiring Domicilee of choice. The residence of a person is a tangible fact, from which intention may be
inferred, while intention is an intangible fact which can be gathered from certain facts in which it is manifested.
“Residence” is an elastic term of which no exhaustive definition is possible. It is differently construed in
accordance with the purpose and the context in which it is used. The meaning of the term and the sense in which
it is used are controlled by reference to the object. In Kumund v Jotindranath22 the Calcutta High Court held
that residence means a place where a person eats, drinks and sleeps, or where his family or servants eat, drink
and sleep. Intention is an act of mind and like other mental facts it can be gathered from all events and
circumstances of the life of a person. The intention must be fixed and not fickle and must be directed towards
one particular place or country. In the case of refugees they may go to another force not voluntarily but due to
pressure of circumstances and later they may settle down there. “What is dictated in the first instance may
become choice in next instance”. In that case they may acquire Domicilee of the country of his refuge. In the
Indian case of Mandal .v. Mandal23 two Austrian Domicileed persons were married in Vienna in 1936. In 1939,
on the invasion of Austria by Nazi Germany they fled to India. Since they lived in India and had no intention of
returning to Austria. A full bench of the Punjab High Court held that they had acquired a Domicilee of choice in
India. In case of fugitives there exist two categories. Those who go to another country to escape from the
consequences of their crime and those who escape from their civil liabilities. In such cases there arises an
inference that they have acquired Domicilee of choice in the new country even though their departure was not
voluntary but it can only be confirmed with the length of stay of the fugitive. Similarly if there is no possibility

22
(1911) 38 Cal .394
23
ILR (1956) Punj.215
of fugitive escaping punishment in case he returns to his country, then it would be a natural inference that he
intended to acquire a new Domicilee of choice in the country which has given him refuge. In the case of
invalids those who permanently settle down in another country because of suitability of climate naturally
acquires Domicilee of choice but those who go to another country for a temporary stay does not acquire
Domicilee. In case of public servants like Ambassadors, consuls the natural inference is that they do not acquire
Domicilee of choice in such countries but if a public servant continues to live in that country even after his
discharge from duties then he may acquire Domicilee of choice in that country.

REFORMS
Attempts in the 1950s and 1960s at the wholesale reform of the law of Domicilee were unsuccessful because
they were thought to be too radical. More recently, the English and Scottish Law Commissions put forward in a
join Report a set of proposals for reform of the major rules which, at least as regards the ease of change of
Domicilee were more conservative.

The Law Commission started off on the basis that it should be a little easier to acquire a new Domicilee. To
achieve this, it was proposed that the standard of proof in all acquisition cases should be the normal civil
standard, and that it should be sufficient to show that a person intended to settle in the country in question for an
indefinite period. When it comes to Domicilee issues other than that of ease of change of Domicilee, a bolder
line was taken which would have led to major improvements in the law.

The Domicilees of origin, choice and dependency would have been abolished, to be replaced by a Domicilee for
children and a Domicilee for adults. This would have greatly simplified the law. No special tenacity would have
been given to the Domicilee received at birth and the doctrine of revival would have been replaced by a rule that
an adult’s Domicilee would continue until another Domicilee was obtained. All in law, the Law Commissions’
proposals represented “a further important step in the process of improving the structure, effectiveness and
fairness of the rules of Domicilee”, and were supported by the judges of the Family Division. In Scotland, the
law in relation to the Domicilee of persons under 16 has been reformed. Influenced, at least in part, by the Law
Commissions’ proposals, Scots law provides that were the parents are Domicileed in the same country and the
child has a home with a parent or with both of them, the child is Domicileed in the same country as its parents.