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Domicile Of Dependence - Quick Glance

What is Domicile?

Lord Cranworth, in the case of Whicker v Hume defined Domicile as:
´┐ŻBy 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 ´┐Żlares' are alluded to), the place ´┐Żunde 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.´┐Ż

Putting into simple words the words of Lord Cranworth, domicile is the permanent home of an individual in a said country, but then again the individual would not lose his ´┐Żpermanent home´┐Ż if he were to reside somewhere else, temporarily. In federal countries or in countries where the powers are divided vertically, the citizenship and domicile of an individual may differ, for example, Rita is a citizen of India but has a domicile in Berhampur, Odisha, or, may have an Indian citizenship but may have a domicile in Myanmar, or may have an American Citizenship but has a domicile in Surat, Gujarat. From this we can assume that an individual might become stateless but can never be without a domicile. Moreover, while a person might have two citizenship, they cannot have more than one domicile, for how can a person have more than one permanent home in a country or place.

This point was established by Lord Westbury in Udny vs. Udny
´┐ŻIt is a settled principle that no man shall be without a domicil; and to secure this end the law attributes to every individual as soon as he is born the domicil of his father if the child be legitimate, and the domicil of his mother if the child be illegitimate. This is called the domicil of origin, and is involuntary. It is the creation of law ´┐Ż not of the party. It may be extinguished by act of law, as, for example, by sentence of death or exile for life, which puts an end to the status civilis of the criminal; but it cannot be destroyed by the will and act of the party.´┐Ż

It was in this case that Lord Westbury laid down the principles of Domicile, that is Domicile of origin, Domicile of choice, domicile of dependency and that no person shall ever exist without a domicile. This case can be deemed to be a leading case in the area of domicile, for it has explicitly mentioned the different kinds of domicile a person can have.

Earlier, the definition and ambit of domicile was restricted only to the concept of ´┐Żpermanent home´┐Ż, but after this case, the concept of domicile was broaden. This view has also been supported by Dr, J.H.C. Morris in the book ´┐ŻConflict of Laws´┐Ż, a re-edited and published version of A.V. Dicey's book ´┐ŻConflict of Laws´┐Ż. Dr.Morris rejects Lord Cranworth's definition that domicile is the permanent home of a person. According to Dr.Morris, ´┐Ża person may be domiciled in a country which is not and never has been his home; a person may have two homes but he can only have one domicile; he may be homeless, but he must have a domicile´┐Ż.

Domicile Of Dependence - a brief understanding
Moving on to the different principles of domicile laid down in the Udny vs Udny case, we find that there are primarily three domiciles : domicile of origin, domicile of choice and domicile of dependency. Domicile of origin can be the domicile of the father (where the father was still alive upon the birth of the child), the domicile of the mother (where the child was considered illegitimate or where the father of the child was not alive upon the birth of the child).

Also, where the parents of the child are not present or known, the domicile of origin would be where the child was found. Domicile of choice can be a place where a child who has reached the age of maturity has settled in, accompanied by the intention to make the chosen place a permanent home. Should an individual leave a domicile of choice to move to another state, place, or jurisdiction, their domicile will revert to their domicile of origin until they have intentionally settled in the new place indefinitely.

Domicile of dependency can be a child's domicile in a scenario where their parent (with whom they live until they have reached the age of maturity) has acquired a different domicile of choice. In cases of marriage, the domicile of the husband is acquired by his wife. Domicile of dependency is also acquired by an individual who is born mentally debilitated or who became mentally debilitated while still being a minor and is therefore dependent on another person(s) until he or she is no longer considered to be mentally debilitated.

This domicile of dependency/dependence is described by Lord Denning as ´┐Żthe last barbarous relic of a wife's servitude´┐Ż . This doctrine or principle of domicile is highly unpopular for this doctrine limits a wife's right to approach a Court, as if a husband were to assume the domicile of another country, then under this principle, the wife was to also acquire the domicile of her husband, hence preventing her from approaching her from any Courts present in her previous country/domicile or the home country they got married in.

Until 1-1-1974 there were three categories of dependent persons: married women, children and the mentally disordered and finally this rule of dependency regarding married women was abolished in the UK in 1973 by Domicile and Matrimonial proceedings Act,1973. While the Courts did not explicitly talk about this removal, they briefly touched upon by Justice Nourse in IRC v. Duchess of Portland.

This was the case where the section related to this rule was interpreted. The provision states that where immediately before 1-1-1974 a woman was married and then had her husband's domicile of dependence, she is treated as retaining that domicile (as a domicile of choice, if it is not also her domicile of origin) unless and until it is changed by acquisition or revival of another domicile either on or after that date.

This means that Mrs A who settled in New York in 1970 acquired a domicile of choice in New York on 1-1-1974 but Mrs B who always intended to settle in New York but was still living with Mr B on 1-1-1974 retains his domicile as a domicile of choice (or quasi-choice) and cannot acquire a domicile of choice until she resides as an inhabitant in New York and intends to live there permanently or indefinitely.

In the case of Puttick v. A.G, the petitioner is a German national with a German domicile of origin. She was arrested in Germany and was charged with a number of serious offence there. While on bail, she absconded and using an illegally obtained passport from a German national, she came to England and married an Englishman in 1975.

The question before the Court was whether she had acquired an English domicile or not. It was held that rule of unity of domicile of husband and wife had been abolished by the Domicile and Matrimonial proceedings Act, 1973 and that, therefore she did not acquire a domicile in England. The Court further held that she did not and could not/cannot acquire a domicile of choice in England as she was staying in England as to avoid trial in Germany and not to setup a permanent home in England.

According to the Court, this was an illegal entry and residence, hence this illegal entry barred the petitioner from acquiring an English Domicile of choice. Regarding the introduction of Domicile of dependence/dependency in India, section 15 and 16 of the Indian Succession Act is based on this doctrine of domicile of dependence/dependency.

In regards to the domicile of legitimate children, the rule of legitimating by subsequent marriage is unknown in Indian law, though Muslims can acknowledge that an illegitimate child is legitimate; this can however, be only done if it is uncertain whether the parties were married, and not if it is established that they were not . Under section 7 of the Indian Succession Act, 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.

For example, in my case, while I live in Rourkela, Odisha but I am domiciled to Berhampur, Odisha, for my father is domiciled to Berhampur, Odisha, this is because the legitimate child is domiciled to domicile of his/her/their father. In case of illegitimate children, in India, the domicile of an illegitimate child is that of his mother (section 8 of Indian Succession Act).

While in Australia, the status of illegitimacy no longer subsists in law; the domicile of an illegitimate child, called ex-nuptial child is determined the same way as that of a nuptial child. Its domicile is that of the father, if the parents are living together or with the parent the child is living with if the parents are separated. In case of a mentally deficient person, under section 18 of the Indian Succession Act, an insane person cannot acquire an independent domicile other than the domicile he gets by following the domicile of another person.

From this we can get a brief understanding what Domicile of dependence is and what it includes. We could also understand that Domicile of dependence is an area where there aren't many laws or judgments regarding to it or any proper interpretation, apart from a few cases which laid down the principles. We also notice that in the Indian context, there aren't many laws that cover the area of domicile dependency except for the Indian Succession Act of 1925. But, again there has not been many instances where the question of domicile dependency arises.

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