This article has been written by Stuti Malik of 1st year student at Hidayatullah National Law University

Introduction

Domicile is seen as a linking element that connects a person with a certain legal system. This legal system comprises his personal law, which establishes his or her legal ability, such as whether or not they are able to marry or how the estate of a deceased person is to be divided. For example, a married man who resides in England is subject to English law in order to dissolve or annul his marriage.

The idea of residence extends beyond conflict of laws issues and includes tax law as well. In fact, many important decisions establishing domicile are tax cases.

Meaning of Domicile

The general meaning of domicile is ‘permanent home’. But Lord Cranworth V  in Whicker v Hume has defined domicile as,

“By ‘domicile’ we mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it. I think the best I have heard is one which describes the home as the place (I believe there is one definition in which the ‘lares’ are alluded to), the place ‘unde non sit discessurus si nihal avocet; unde cum profectus est, peregrinari videtur.’ I think that it is the best illustration, and I use that word rather than definition, to describe what I mean.”

But reform organisations in England and other nations that adhere to English common law have criticised the conventional notion of residence. This disapproval is primarily based on two reasons, which were previously mentioned in 1954. (First Report of the Private International Law Committee, Cmnd 9068).

The first point of contention is the extreme importance given to the domicile of origin, particularly the revival of the domicile of origin when the domicile of choice is given up without obtaining a new domicile of choice, and the fact that the person asserting the change in the domicile of origin, which appears irrational and unjustified, must bear a heavy burden of proof.

The second relates to the challenge of establishing the intent necessary to obtain a domicile of choice. Concerning the standard of proof necessary to get a domicile of choice is another issue.

All of this criticism was made due to the uncertainties brought about by the domicile law’s complicated structure, which not only causes delays and costs money, but also produces unpredictable consequences.

Importance of Domicile

Domicile is important since it serves as both a linking element and an exclusively expanded role. It can be utilised as a jurisdictional connection, which is necessary for the forum to assume jurisdiction, or to recognise and assume the jurisdiction of a foreign court. It also establishes a person’s eligibility to vote, his right to hold public office, his right to receive help for a variety of needs, including sickness or unemployment, and his tax responsibility. As a result, no one is without a domicile since a person must be connected to a legal system in order for his or her legal ties to be governed by it.

In the landmark judgement of DP Joshi Vs State of Madhya Bharat (1955)19, many legal concepts linked to domicile were questioned. When a previously Private College that the State bought gave an order that the students who were born and lived in Madhya Bharat didn’t need to pay a fee. The petition was filed against this order stating that it was violating Articles 14 and 15 of the constitution which clearly states that no one should be discriminated against based on their “place of birth” and it emphasised the importance of Citizenship. The petition was rejected and the Supreme Court held that Fundamental Rights were not violated based on domicile in this case. It further explained the difference between “place of residence” and “place of birth” and how they can’t be read the same. The judgement of the case was focused on the former. Domicile law here didn’t violate Article 14 and the order given by the college was to promote and enhance education in their State.

Principles Governing Law of Domicile

The law of domicile is governed by five guiding principles.

1. The first rule is that no one should be homeless. According to the legislation, each individual is given a domicile of origin at the moment of birth; a legal child is given the domicile of the father, an illegitimate kid is given the domicile of the mother, and a foundling is given the domicile of the location where he is found. This residence of origin remains in effect until a new residence, or residence of preference, is acquired.
2. Second, a person is not permitted to have two residences at once.
3. Thirdly, while domicile links a person to a certain geographical legal order, it does not always imply that that order sets forth the same rules for all categories of people. According to a population’s religion, race, or caste, for example, different regulations will apply to various demographic groupings.
4. Fourthly, there is a predisposition in favour of maintaining a current residence.
5. The fifth and final criteria is that, with few legislative exceptions, a person’s residence must be established in accordance with English law rather than a foreign idea of domicile.

Types of Domiciles

The ways of acquiring a domicile have often been based on the following, depending on the circumstances of a person and the type of domicile:

• Domicile of Origin

If the father was still living when the kid was born, the child’s domicile of origin might be either the mother’s or the father’s (where the child was considered illegitimate or where the father of the child was not alive upon the birth of the child).

Additionally, in cases when the kid’s parents are absent or unknown, the place where the infant was found would serve as the domicile of origin.

• Domicile of Choice

The term “domicile of choice” can refer to a location where a kid who has reached adulthood has made a permanent home after settling down there.

A person’s domicile will return to their domicile of origin if they leave their domicile of choice to migrate to another state, location, or jurisdiction until they have voluntarily made the new location their permanent home.

• Domicile for Dependency

When a parent, with whom a kid lives until they are of legal age, has moved into a separate home, the child’s domicile may become their domicile of dependency. When a couple gets married, the wife inherits the husband’s home.

A person who is born mentally disabled or who develops a mental disability while still a minor and becomes dependent on someone else until he or she is no longer regarded as mentally disabled also acquires the domicile of reliance.

Domicile for Certificate

A domicile certificate is a legal document that the state government issues or provides stating that the recipient is domiciled in the certain State or Union Territory. States will have different requirements for qualifying and documentation for this.

One can submit an application for this online using the state’s online service where they want to get their domicile certificate. Alternatively, they can submit an application in person by going to the district collector’s office, the tahsildar’s office, the revenue department’s office, etc.

This certificate can act as proof of domicile or residence of a person in any matters that demand for it. It can also be used while applying for jobs or educational institutions that have ‘resident quotas’, a reservation that’s been heavily debated over the years. This is because many argue that such reservations are unconstitutional as certain articles of the Constitution state that no one should be discriminated against based on residence for any employment positions.

Domicile, Nationality and Residence

 Even though these three words have similar meanings, have different understandings. Legally, they are not the same even though it they are all territorial and jurisdictional terms. ‘Nationality’ can be described as the country or nation a person belongs to or has ties with. It is also considered a synonym for ‘Citizenship’ as citizenship is defined as the status of an individual under the law and their recognition before the state as a legal member of the society. ‘Residence’ is the place a person lives and stays. It’s focused on the physical aspect of staying somewhere. A house or residence is said to be where a person stays; whether they’ve been staying there since birth, whether it’s a family home or a guest house they stay at from time to time, or if it’s the residence you’re currently staying at for work, the list can go on. As has been discussed, ‘Domicile’ is the legal concept regarding the permanent place a person intends to stay for an indefinite time. They carry out many functions such as jurisdiction and regulation; matters like succession, estate planning, tax, divorce and marriage laws and so on.

Conclusion

The idea of domicile has evolved into a need for identifying jurisdiction and other legal features of it. This helps to resolve concerns with laws that rely on domicile to establish jurisdiction and settle the current legal disputes. As may be seen from the case law reviewed, each individual should only have one domicile, unless it is mandated by law. That, however, is an exception given that having more than one might lead to needless difficulties and confusion in every way. Taking advantage of or abusing the territorial laws is not acceptable, thus having a clear domicile assures that there is no wrongdoing in situations where there is a jurisdictional backdrop.

REFERENCES

Books 

• Dr. Mahajan V.D., Jurisprudence and Legal Theory, 5th Edn., Eastern Book Company, Lucknow, 1993.
• Dr. Tripathi B.N. Mani, Jurisprudence The Legal Theory, 19th Edn., Allahabad Law Agency, Faridabad, 2013.

Journals

• Pound Roscoe, Harvard Law Review, Jun., 1911, Vol. 24, No. 8 (Jun., 1911), pp. 591-619.
• Brian Z. Tamanaha, John S. Lehmann University Professor, Legal Studies Research Paper Series Paper No. 19-03-01, Washington University in St. Louis School of Law, March 2019. 
• Bhardwaj Arunesh & Agarwal Anshika, Indian Law Embracing Sociological Jurisprudence: A Detailed Study, International Journal of Law and Legal Jurisprudence Studies: ISSN:2348-8212 Volume 2 Issue 3.

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