DOMICILE: MEANINGS AND KINDS

SUBMITTED TO DR. SADIYA

SUBMITTED BY
SAHIL CHOWDHURY
B.A. LL.B. (HONS.) 10TH SEMESTER
5TH YEAR

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ACKNOWLEDGEMENT
Firstly, I would like to express my profound sense of gratitude towards the Almighty
ALLAH for providing me with the authentic circumstances which were mandatory for the
completion of my research work.
I am also thankful to Dr. Sadiya , for her invaluable support, encouragement, supervision and
useful suggestions throughout this research work. Her moral support and continuous guidance
enabled me to complete my work successfully. Her intellectual thrust and blessings motivated
me to work rigorously on this study. In fact this study could not have seen the light of the day
if her contribution had not been available. It would be no exaggeration to say that it is his
unflinching faith and unquestioning support that has provided the sustenance necessary to see
it through to its present shape.

Sahil Chowdhury
B.A.LL.B (Hons) 10th Semester
5th Year
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TABLE OF CONTENT
1. INTRODUCTION TO DOCTRINE OF DOMICILE

2. BRIEF HISTORY OF DOMICILE

3. IMPORTANCE OF DOMICILE

4. DEFINITION OF DOMICILE

5. ASCERTAINMENT OF DOMICILE

12

6. DOMICILE AND NATIONALITY

13

7. RULES AND KIND OF DOMICILE

15

8. ACQUISITION OF DOMICILE: INTRODUCTION

18

9. DOMICILE OF ORIGIN

18

10. DOMICILE OF CHOICE

21

11. DOMICILE BY OPERATION OF LAW

24

12. JUDICIAL RESPONSE

27

13. BIBLIOGRAPHY

29

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INTRODUCTION TO DOCTRINE OF DOMICILE

Domicile is considered to be a connecting factor which links a person with a particular legal
system. This legal system includes his personal law which determines the legal capacity of
that person as for example whether that person has the legal capacity to marry or how the
property of a deceased person is to be distributed. For instance a married man domiciled in
England is under the jurisdiction of England for purposes of dissolving or annulling his
marriage. The concept of domicile is not just confined to conflict of laws but also extends to
tax law and in fact many leading judgments defining domicile are tax cases.
Differences which exist between two or more legal systems provide the theoretical
foundation for the subject known as conflict of laws. Every legal system has a rule which
tends to distinguish it from others. With particular regards to matters considered as bothering
on an individuals civil status different legal system have established rules as to the law,
which ought to govern in those cases. These matters usually involve those aspects of the
individuals interests for which resort can be had to a single system of law, in making a
decision as to an appropriate law that ought to govern.
In order to identify the specific system of law that should govern these issues with regards to
a particular or individual the laws of different countries have established diverse criteria.
While in England domicile is the rule, in Italy and some other European countries it is
nationality. Some other systems tend to combine both criteria1.
Domicile which is a private international law or conflict of laws concept identifies a person,
in cases having a foreign element, with a territory subject to a single system of law, which is
regarded as his personal law. A person is domiciled in the country in which he is considered
to have his permanent home. His domicile is of the whole country, being governed by
common rules of law, and not confined to a part of it. No one can be without a domicile and
no one can have two domiciles. A domicile of origin is attributed to every person at birth by
operation of law. This domicile is not decided by his place of birth or by the place of
residence of his father or mother, but by the domicile of the appropriate parent at the time of
his birth, according as he is legitimate or illegitimate.

Agbede. I. O: Themes on conflicts of laws, Ibadan. Shaneson , 1989. P 49

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It is possible for the domicile of origin to 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. When a person is referred to as domiciled in a country, the expression 'country' is used
in private international law as a term of art denoting, in the words of dicey, the whole of a
territory subject under one sovereign to one body of law. But in a federation like the United
States, Australia, or Canada, or in a composite State like the United Kingdom, different
systems of law may prevail in different regions in respect of certain matters. In such cases,
each of the territories governed by a separate system of law is treated, for the purpose of
private international law, as a 'country', though in public international law or constitutional
law it is not a separate sovereign State. This is, however, not the position in India.
Though a Union of States, and a federation in that sense, the whole country is governed by a
single unified system of law, with a unified system of judicial administration,
notwithstanding the constitutional distribution of legislative powers between the Centre and
the States. There is no State-wise domicile within the territory of India. A man who is
domiciled in India is domiciled in every State in India and identified with a territorial system
of legal rules pervading throughout the country. He is 'domiciled' in the whole of this country,
even though his permanent home may be located in a particular spot within it. Thus, the
concept of domicile varies from country to country and from jurisdiction to jurisdiction.

BRIEF HISTORY OF DOMICILE

The concept of domicile in common law is derived from the Roman law and the usus
modernus through the Canon law. According to a modern Canonist, "The term domicilium is
derived from domum colere, to foster or inhabit the home. Domicile is not any place of
residence but a place of habitual residence."
At that time the ordinary man's Diocese had authority over him in the Consistory Court in
England and a man's domicile in a Diocese was established by his habitual residence. The
Bishop of the Diocese of the domicile had jurisdiction in religious causes and in England this
included probate and matrimonial jurisdiction even before the Matrimonial Causes Act 1857
and the Court of Probate Act 1857. English statutes dealing with marriage characterise the
place where a man dwells, of his dwelling place; and domicilium is a habitation or a
dwelling.
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Therefore domicile is a place of residence in a Diocese in Roman Canon law and in the
English Canon law from which the English notion of domicile has evolved.

IMPORTANCE OF DOMICILE
Domicile not only acts as a connecting factor but it also has an exclusively extended role. It
can be used as a jurisdictional link which is a pre-requisite for assumption of jurisdiction by
the forum or for recognition and assumption of a foreign court's jurisdiction. It also
determines an individual's right to vote, his right to hold public office, his entitlement to
support in respect of various needs such as ill-health or unemployment and his liability to
various forms of taxation. Therefore there is no person without a domicile because it is
necessary to connect a person with some legal system to regulate his legal relationships.

DEFINITION OF DOMICILE
Domicile (the lex domicilii) has a dominating role in family and matrimonial property law
and a role in other areas such as capacity of persons to make contracts. It plays a part also in
the law of taxation. There is only one concept of domicile: accordingly, a case on whether a
taxpayer has acquired a domicile in England is also authority for the question of whether
someone has the capacity to marry or make a will.
DOMICILE CANNOT BE DEFINED WITH PRECISION
Old cases such as Whicker v Hume2 defined domicile as permanent home. However, you
will find many reported cases where a person has lived in a place for 30 or 40 years and has
not been held to have acquired a domicile there. After reading the cases listed above you may
conclude that the persons in question (such a person is often called the propositus) had
permanent homes in England, but in none of the four cases was a domicile acquired in
England.
Therefore a person is said to have home in a country where he resides permanently without
any intention of moving. On the other hand a person does not cease to have his permanent
home in a country merely because he is temporarily residing elsewhere.
2

[1858] 7 HLC 124, 160

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But the traditional concept of domicile has received criticism from reform agencies in
England as well as in other countries which follow English common law. This disapprobation
is based mainly on two grounds, which were also pointed out in 19543.
First point of contention relates to the extraordinary importance attached to the domicile of
origin, particularly to the revival of domicile of origin when domicile of choice is abandoned
without obtaining a new domicile of choice, and the fact that there is heavy burden of proof
on the person who asserts the change in the domicile of origin which seems to be irrational
and unjustified.
The second concerns with the difficulty attached in proving the intention required to acquire a
domicile of choice. It also concerns with regard to the doubt about the standard of proof
required to acquire a domicile of choice. All this criticism was put forward because of the
ambiguities created by the complex nature of the domicile law which not only results in time
delay and money outlay but also leads to uncertain results.
This research paper will discuss these criticisms in detail, looking into its brief history and the
law reform proposals recommended by the Private International Law Committee and the Bills
which were presented to make amendments in these criticised concepts of the domicile of
origin. These contentious aspects of domicile law will also be compared with corresponding
facets of American Law where these flaws were removed by amending the law of domicile
adequately.
DOMICILE IS AN IDEA OF LAW
Domicile diverges from the notion of permanent home in three ways:

Firstly, the elements required for the acquisition of a domicile go beyond those
required for the acquisition of a permanent home. Thus, to acquire a domicile of
choice in a country a person must intend to reside in it permanently or at least
indefinitely.

Secondly, the law attributes a domicile to everyone, whether they have a permanent
home or not. A vagrant, for example, has a domicile.

(First Report of the Private International Law Committee, Cmnd 9068)

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Thirdly, certain persons, for example children under 16, cannot acquire independent
domiciles. They may thus have permanent homes in places in which they are not
domiciled, because the person upon whom they are dependent is domiciled elsewhere.

THE PRINCIPLES OF DOMICILE

The basic principles set out most recently in F v F4, are that:
1. no person can be without a domicile5. The law assigns a domicile of origin to every
person at the time of his birth, i.e. to a legitimate child the domicile of the father, to an
illegitimate child the domicile of the mother, and to a foundling the domicile of place
where he is found. This domicile of origin continues until a new domicile i.e.
domicile of choice is acquired.
2. no person can at the same time for the same purposes have more than one domicile6
3. an existing domicile is presumed to continue until it is proved that a new domicile has
been acquired7
4. Domicile connects a person with a single system of territorial law but it does not
necessarily signify a system that prescribes the same principles for all the classes of
persons. As for instance in India different rules will apply to different categories of
population according to their religion, race or caste.
The burden of proving a change of domicile lies on those who assert it. The change of a
domicile must be proved on a balance of probabilities, not beyond reasonable doubt.
For the purpose of an English rule of the conflict of laws, the question of where a person is
domiciled is determined according to English law.8
According to Sir GEORGE JESSEL;
The term domicile is incapable of definition9
MORRIS also has asserted that

[2009] 2 FLR 1496, 1503

Mark v Mark [2006] 1 AC 98
6
IRC v Bullock [1976] 1 WLR 1178, 1184
7
Winans v A-G [1904] AC 287, 289
8
Re Annesley [1926] Ch 692; Lawrence v Lawrence [1985] Fam 106, 132
9
Doucat v Geoghegeon (1878) L. R. 9 Ch. D at 256
5

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Domicile is easier to illustrate than it is to define10

This is probably due to the fact that traditional definition has become rather obsolete as a
result of judicial modification, which has attended the concept overtime.
THE OXFORD ADVANCE AND LEARNERS DICTIONARY define domicile as
The place where somebody lives, especially when it is stated for official or legal
purpose11
THE BLACK LAW DICTIONARY defines the concept of the domicile as
A persons legal home. That place where a man has his true, fixed and permanent
home and principal establishment, and to which whenever he is absent he has the
intention of returning12
LORD CRANWORTH attempted a definition sometimes ago in Whicker v. Hume13 to the
effect that;
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 language will very much help you to it
This definition by Lord Cranworth is obviously simplistic from the subsequent judicial
developments on these issues. In fact there is an opinion that the definition by LORD
CRANWORTH is far too simplicitic and indeed somewhat misleading14
LORD CRANWORTHs definition errs on the side of simplicity because there are
circumstances in which a person may not be residence in his place of domicile. The fact that
one has lived in a particular place for several years is irrelevant where there is intention to
remain there.15
MORRIS also objects to this definition on the ground that a persons domicile may not
always be the permanent home. In fact according to him;
10

Morris, Conflict of laws, 4th ed by J. C McLean, Sweet and Maxwell, 1993, p.126th edition
6th edition by Sally Wehmeier (2000)
12
Bryan A. Garner: 8th edition Thompson West 2004
13
(1958) H L C 124 at 160
14
Collier J. G : Conflict of laws, 2nd edition, Cambridge, C. U. P 1994. P 40.
15
White v Tenant (1880) W L R 790 and IRC v Bullock (1976) W L R 1178
11

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A 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 concluded that there is often a wide difference between the English concept of domicile
and population of a home.
Judicial authorities have equally shown that to acquire domicile according to the received
English law, it is necessary to establish residence in a place and an intention to reside there
permanently. The English courts have with complete justification established the principle of
definition of domicile for the purpose of English rule conflict of laws according to the
concept in English law Nevertheless it is clear from decided cases that to acquire domicile in
territory, according to the received English law, it is necessary to establish residence and an
intention to remain there permanently (or indefinitely). A domicile can only be acquired by
the concurrence of these two factors. However, an intention of indefinite residence is not
equivalent to permanent residence if it is contingent upon uncertain event.16
Thus in Moorhouse v. Lord17 it was held that:
The present intention of making a place a persons permanent home exists only
where he has no other idea than to continue there without looking forward to any
event, certain or uncertain which might induce him to change his residence. If he has
in his contemplation some event upon the happening of which his residence will cease
it is not rather a present intention of making it a temporary home, though for a period
indefinite and contingent.
This rule of domicile might have worked well during its formative (mid-Victorian England)
era of comparative certainty, simplicity and legalism but in the contemporary world of
tension and increased mobility, few things for human affairs can be certain least of all is
ones intention. As stated by CHESHIRE18,
Singular indeed would be the man who could unreservedly warrant that whatever
good or evil might befall him he would never return whence he came

16

Ibid
(1863) 10 H L Cas 272 at 285-286
18
Cheshire: Private International Law (7th ed) at 145
17

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In GRAVESONs19 view, this definition no longer fits the complexity movement and
sophistication of modern life in which many of our best intentions become temporary though
frustrating circumstances. Rather curiously, this unsatisfactory definition of the English
concept of domicile has been in Fonseca v. Passman20, THOMAS.J., held that:
To establish a domicile in Nigeria the mere factum of residence here is not
sufficient. There must be unequivocal evidence of animus manendi or intention to
remain permanently
More curiously, however is the failure of the Nigerian judged to distinguish between interstate and international situation. For instance, in Udom v. Udom21, COKER.J., who was
concerned with an inter-state conflict problem said:
The subject must not only change his residence to that of a new domicile, but also
must have settled or resided in the new territory cum animo manendi The residence in
the new territory must be with the intention of remaining there permanently to reside,
the factum is the actual residence.
This dictum appears to ignore the warning of BEALE22 that the circumstances of life in a
country must have weight with the judge in determining the meaning of domicile.
In USA there is a habit of moving from place to place; in England the habit is to
remain indefinitely in one place. The rule of English law will have many Americans
without a domicile of choice.23
American judges are equally conscious of the inconvenience that will result from adopting
the English rigid definition of domicile. Thus, PARKER .J. held in Putman v. Johnson24 In
this new and enterprising country it is doubtful whether one half of the young men, at the
time of their emancipation, fix themselves in any town with an intention of always staying
there. They settle in a place by way of experiment to see whether it would suit their view of
business and advancement in life, and with an intention of removing to some more

19

Graveson: Conflict of laws (1969) p. 207

(1958) WRNLR 41 at 42
21
(1962)LLR.112 at 117
22
Beale, J.HA. :Treatise on the conflict of law (1935),P.106
23
Ibid
24
10 Mass 488,501(1813)
20

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advantageous position, if they should be disappointed. Nevertheless they have their home in
their chosen abode while they remain.
Where in accordance with COKER Js dictum shall we locate the domicile of the nomadic
cattle Fulanis? It is common knowledge that an Ibo man, for example, who was born in a
northern state, who has been living in the in North all his life and who has no fixed intention
as when he would leave there, would nonetheless entertain a hope, however remote, of
returning to the East dead or alive. It may be appropriate to recall, at this junction, the
decision in a post reception English case, where it was held that a person who intended to
reside in a country indefinitely might be domiciled there although he envisaged the
possibility of returning one day to his domicile of origin.
In GRAVESONs25 view, we must not deny local domicile to a man who has settled in a
place without intending to remain there as long as circumstances allow him to do so.
In view of the limited function of domicile in matters of inter-state conflict problems in
Nigeria. It is suggested that habitual residence in any constituent state should be sufficient to
found a domicile in such a state.
This suggestion appears more practical and more consonant with the social conditions in
Nigeria than the dictum in Udom v. Udom26. In a union where inter-state movements are
unrestricted, it will be difficult, if not impossible to find people who will wish to reside in a
particular state for better for worse.
Moreover, it is in best interest of Nigerian people to discourage ethnic cohesion and
minimizing its attendant evils. Such a social policy ought to influence judicial decisions, but
the decision in Udom v. Udom27 domicile does not appear to take account of this policy.
As for the necessary requirements for establishing a domicile in Nigeria at the international
level, it would be better, one imagines, to impute an intention to be domiciled in Nigeria to
persons who are habitually resident in Nigeria. This suggestion is designed to aid the courts
in ascertaining a persons therefore, if there is evidence convincingly showing that a
propositus has no such intention, he should he should be denied a local domicile.

25

Graveson,op,cit,Five Sheffield Jubilee Lectures at 97

Ibid
27
Ibid
26

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The object of determining a persons domicile is to connect him with some legal system for
certain legal purposes. To establish this connection it is sufficient to fix his domicile in some
country in the sense of the conflict of laws .e.g. England or Scotland, California or New
York. It is not necessary to show in what part of such a country he is domiciled28, but it is
usually insufficient to show that he is domiciled in some composite state like the United
Kingdom, the United States, Australia or Canada with, each of which comprised several
countries in the conflict of laws sense. A person who emigrates, Scotland or to Canada with
the intention of settling either in England or British Columbia, does not change his domicile
until he has decided in which country he intends to settle and has actually settled there.29

ASCERTAINMENT OF DOMICILE
The question as to whether a person has established factual residence in a particular country
raises little or no problem in practice. However, the thorough manner in which the English
courts attempt to discover the necessary intention has produced absurd results. These courts
have found it necessary to consider such difficult as a persons taste, habits, conducts, action,
ambitions, health, hopes, projects and so on. there is no act, no circumstances in a mans life
however trivial it may be in itself, which ought to be left out of consideration.. But these
factors are, one imagines, hardly suitable for judicial enquiry.
What is rather absurd in the whole exercise is that circumstances which are treated as
decisive in one case may be disregarded in another or even relied upon in support of a
different conclusion. No circumstances of group of circumstances appear to furnish a definite
criterion of the existence of the necessary intention.
The latitude of discretion which the courts reserve to themselves makes their decisions appear
arbitrary and very often inconsistent. The result is that a persons domicile may remain
uncertain throughout his life. Must our domicile asks Gravenson continue to be kept a legal
secret from us until we either invoke divorce jurisdiction or die? A desirable approach for the
Nigerian courts in this regards is to tackle this problems with the presumption that a person
intends to reside indefinitely in a country where he is habitually resident. This presumption
which should be rebuttable will, it is hoped, obviate the very complicated problems involved
28

Re craignish(1892)3 Ch 180,192
Att.Gen For Alberta v Cook (1926) AC 444

29

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in discovering a persons exact intention when he is absent from jurisdiction or when (as is
usually the case) he is already dead.

DOMICILE AND NATIONALITY

The change from domicile to nationality on the continent of Europe started in France with the
promulgation of the code Napoleon in 1804. One of the principal objects of the codifiers was
to substitute a uniform law throughout the whole of France for the different coutumes of the
French provinces. In matters of personal status these coutumes applied to persons domiciled
within the province, whenever they happened to be. It was natural that the new uniform law
should apply to Frenchmen everywhere, Article 3 (1)30 of the civil code provided that the
laws governing the status and capacity of persons govern Frenchmen even though they are
residing in foreign countries. No provision was expressly made for the converse case of
foreigners residing in France, but the French courts held that in matters of status and
capacity they too were governed by their national law. The provisions of the French code
were adopted in Belgium and Luxembourg and similar provisions were contained in the
Austrian code of 1811 and the Dutch code of 1829.
The change from domicile to nationality on the continent of Europe was accelerated by
Mancinis famous lecture he advocated the principle of nationality on the ground that laws
are made more for an ascertained people than for an ascertained territory. A sovereign (he
said) in framing laws for his people should consider their habits and temperament, their
physical and moral qualities and even the climate, the temperature and fertility of the soil.
This was heady wine for a people preparing to throw off a foreign yoke and unify all the
small state of Italy into a new nation. Under Mancinis influence article 6 of the Italian civil
code (1865) provided that the status and capacity of persons and family relations are
governed by the laws of the nation to which they belong. Mancinis ideas proved extremely
influential outside Italy too, and in the second half of the nineteenth century the principle of
nationality replaced that of domicile in code after code in continental Europe, until today only
Norway and Denmark retain the principle of domicile. The result is that the nations of their
world have become divided in their definition of the personal law; and it is the fact more than
any other which impedes international agreement on uniform rules of the conflict of laws.
30

Code Napoleon 1804

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What then are the arguments in favour of nationality and domicile as the personal law? The
advocates of nationality claim that it is more stable than domicile because nationality cannot
be charged without the formal consent of the state of new nationality. However, as has been
well said, the principle of nationality achieves stability, but by the sacrifice of a mans
personal freedom to adopt the legal system of his own choice. The fundamental objection to
the concept of nationality is that it may require the application to a man, against his own
wishes and a desire has perhaps risked his life.
It is also claimed that nationality is easier to ascertain than domicile because it involves a
formal act of naturalization and does not depend on the subjective intentions of the
propositus. This is undoubtedly time, though there may be difficult cases of double
nationality or of statelessness31. But it does not follow that the most easily ascertained laws is
the most appropriate law. Many immigrants who have no intention of returning to their
country of origin do not trouble to apply for naturalization. It would have been ludicrous to
say that only the English courts, and not the courts of California, had jurisdiction to grant a
divorce to the film actor Charlie Chaplin- or, for that matter, that only the American courts
had jurisdiction to grant a divorce to Mr. Winans. The decisive consideration for countries
like the United Kingdom, the United State, Australia and Canada is that, save in a very few
respects, there is no such things as United Kingdom, American, Australian, or Canadian law.
Since the object of referring matters of status and capacity to the personal law is to connect a
man with someone legal system for many legal purposes, nationality breaks down altogether
if the state contains more than one country in the sense of the conflict of laws. This is
something which continental lawyers seem unable to comprehend. They sometimes speak as
though the United kingdom and the United States are as legally backward today as France
was before 1804 or Italy before 1865, simply because there is a diversity of legal systems
throughout the state.

31

Beckett(then second legal adviser to the foreign office) 1939

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RULES AND KIND OF DOMICILE

There are five general rules or principles to be discussed
1. It is a settled principle that no person can be without a domicile32. The rule springs with
some system of law by which a number of his legal relationships may regulated.
it is a settled principle said Lord Westbury in leading case33, that no man shall be
without a domicile and to secure this result the law attributes to every individual as
soon as he is born the domicile of his father, if the child be legitimate, and the
domicile of the mother if illegitimate,. This has been called the domicile of origin, and
involuntary34
Also to a foundling, the place where is found will be his domicile. This prevail until a new
domicile has been acquire35, so that if a person leaves the country of his origin with an
undoubted intention of never returning to it again, nevertheless, his domicile of origin
adheres to him until he actually settles with the requisite intention in some other country.
2. A person cannot have two domiciles. Since the object of law in insisting that no person
shall be without a domicile is to establish a definite legal system by which certain of his
rights and obligations may be governed, and since the fact and events of his life
frequently impinge upon several countries, it is necessary on practical grounds to hold
that he cannot possess more than one domicile at the same time, at least for the same
purpose.
Domicile signifies connection with what has conveniently been called a law district.36
i.e., a territory subject to a single system of law. In the case of a federation, where the
legislation authority is distributed between the state and federal legislatures, this law
district is generally represented by the particular state in which the propositus has
established his home37. A resident in the USA, for instance is not normally domiciled in
the USA as such, but in one of its states. Nevertheless, the doctrine of unity of domicile
32

Bell v Kennedy(1868) LR 1 Sc & Div 307

Westlake :S 248; Dicey and Morris P.126
34
Udny v Udny (1869) L.R. 1 Sc 441, 458
35
IRc v Bullock(1976) 1 WLR 1178 at 1184
36
Dicey and Morris, pg 118- 119
37
Odiase v Odiase (1965) NMLR 196
33

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one man, one domicile- may be modified by federal legislation. Thus the family law
1975, which has force throughout the commonwealth of Australia, provides inter alia that
proceeding for a decree of dissolution of marriage is domiciled in Australia38. Thus, the
effect within a limit field is to create an Australian, as distinct from a state, domicile and,
indeed, one that, because of statutory amendments in this limited content, is different
from domicile in a state for other purpose, e.g. succession39.
3. The fact that domicile signifies connection with a single system of territory law does not
necessarily connote a system that prescribes identical rule for all classes of persons. It
may well be that in a unit such as India different classes of the population according to
their religion, race or caste, but none the less it is the territorial law of India that governs
each person domiciled there, notwithstanding that Hindu law may apply to one case,
Muslim to another.
4. An existing domicile is presumed to continue until it is proved that a new domicile has
been acquired. Hence, the burden of proving a change of domicile lies on those who
assert it. Conflicting views have been expressed as to the standard proof require to rebut
the presumption. According to SCARMAN. J., the standard is that adopted in civil
proceeding, proof on a balance probability not that adopted proof beyond reasonable
doubt in the criminal proceedings.40 On the other hand, according to SIR. JOCELYN
SIMON P., the standard of proof goes beyond a mere balance of probabilities41. This
observation no doubt stems from such cases as Winans v. A.G42 which appear to regard
the intention in favouring of retaining the domicile of origin as an almost irrebuttable
presumption SCARMAN.J., however, added that two things are clear-first, change, the
domicile of origin persists; and secondly, that the acquisition of a domicile of choice is
serious matter not to be lightly inferred from slight indications or casual words.
The presumption of continuance of domicile varies in strength according to the kind of
domicile which is alleged to. It is weakest when that domicile is one of dependency43 and
strongest when domicile is one of origin, for its character is more enduring, its hold
stronger, and easily shaken off. The law commissions proposals for the reform of the law
of domicile would leave unchanged the rule the burden of proving the acquisition of a
38

Family Law Act 1975, s 39(3) (b)

Lloyd v Lloyd (1961) 2 FLR 349 36
40
Re Fynn (No 1 ) (1968) 1 WLR 103
41
Henderson v Henderson ( 1969) p. 77 at 80
42
(1904) AC 287
43
Harrison v Harrison (1953) 1 WLR 865
39

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new domicile falls on the person alleging it. However, the normal civil standard of proof
on a balance of probabilities would apply in all disputes about domicile and no higher on
different quality of intention would be required when the alleged change of domicile was
from one acquired at birth than when it was from any other domicile.
5. For the purpose of a rule of conflict of laws, domicile means domicile in the English
sense. The question where a person in domiciled is determined soled in accordance with
English law. Thus, persons domiciled in England often acquired a domicile of choice in
France without complying with the formalities formerly required by French law for the
acquisition of a French domicile44. Conversely, a person domiciled in e.g. France may
acquire an English domicile of choice regardless of whether French law would regard him
as domiciled in England50. There is one statutory exception to this rule. Section46 (5) of
the family law Act 1986 refers to domicile in a country in the sense of that countrys law
It is too wide a formulation to say that an English court, domicile means domicile in the
English sense. Under the renvoi doctrine, English courts sometimes refers to the whole
law of a foreign country, including its rules of the conflict of laws, and accept a reference
back to English law either because the foreign conflict rule referrers to the law of the
nationality, and the propositus is a British citizen; or because the foreign conflict rule
refers to the law of the domicile, and the foreign court regards the propositus as domiciled
in England. In the latter case, it is not true that domicile in English court always means
domicile in the English sense; but it is still true that it means domicile in the English
sense for the purpose of an English rule of the conflict of laws There are different kind of
domicile and they are;.

Domicile of origin

Domicile of choice

Domicile of dependent person e.g. domicile of children, married women, persons

of unsound mind and so on.

44

Collier v Rivas (1841)2 Curt 855

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ACQUISITION OF DOMICILE: INTRODUCTION

Every person in accordance with the English law is required to have or acquire a domicile
and since domicile is the means of ascertaining a persons personal law under the English. In
this regard, acquisition of domicile is a way by which domicile can be obtained by a person.
The various types of domicile has a way they can be acquired e.g. domicile of origin is
acquired at birth, this is rather automatic in that it is ascribe to every person at birth unless
such person acquire another by his own choice when eligible. Domicile of choice on the other
hand is acquired when a person takes up residence in another country which is backed up by
an intention to remain permanently. There are however special cases where domicile is being
dictated by some external necessity, such as offices, the demands of creditors or relief from
illness. The loss of domicile of choice, domicile of origin and choice contrasted and how
domicile and nationality can be changed.

DOMICILE OF ORIGIN
Every person acquires at birth a domicile of origin.

This is the domicile of his father at the time of his birth if he is legitimate. It is the
domicile of his mother if he is illegitimate or if his father dies before he is born.

Foundlings have a domicile of origin in the country in which they are found.

A domicile of origin may be changed as a result of adoption, but not otherwise.

A domicile of origin is more tenacious than a domicile of choice. It is more difficult to prove
it has been abandoned. If a person leaves the country of his domicile of origin, intending
never to return to it, he continues to be domiciled there until he acquires a domicile of choice
in another country. But if a person leaves the country of his domicile of choice, intending
never to return to it, he ceases to be domiciled in that country unless and until he acquires a
new domicile of choice, his domicile of origin revives.
As mentioned earlier, domicile of origin is a domicile ascribed to a person when he is born.
Lord Westbury remarked in Udny v Udny:

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"That no man shall be without a domicile, and to secure this result the law attributes to every
individual as soon as he is born the domicile of his father, if the child be legitimate, and the
domicile of the mother if illegitimate."
If a child is born after the death of the father or if an illegitimate child is later legitimated, in
both cases, the domicile of origin will remain same as that of the mother. An adopted child
probably acquires the domicile of origin of the adoptive parents as such a child is treated as if
born in lawful wedlock. The domicile of origin is conferred on the basis of origin. There are
exceptional cases like Re McKenzie, where domicile of origin of a child is determined on the
basis of the place where he was found and not on the basis of his parents' domicile. In the
mentioned above case the domicile of an illegitimate child was determined on the basis of the
place where he was found because the domicile of his mother was unknown.
The children under 16 and mentally disable person acquire a domicile of dependence which
changes with the change of their guardian. In later life, the child can acquire a domicile of
choice after becoming independent and can also abandon it without acquiring a new one. At
that stage the domicile of origin will revive.
The rules on the law of domicile had been laid down by the judges of the Victorian time and
the law of the domicile of origin has gained strength with time despite being criticised.
Domicile of origin is such a powerful concept that even if a person leaves his country of
origin with an intention not to return back, he is still considered to be domiciled there until he
obtains a new domicile of choice in another country. Therefore a person who has never even
visited a particular country can have the domicile of origin of that place. In Grant v Grant, a
child was born in India but his domicile of origin was held to be English following his
father's domicile of origin. It illustrates that domicile of origin is the hardest to lose among all
the three types of domiciles. Although the principle of domicile of origin was finally
established in Udny v Udny, but it has come a long way since then and has carried on proving
its strength and significance since then.
As domicile is the only means of ascertaining a persons personal under the English law, it is
inevitable that English law should require that everybody must have a domicile. In order to
make this rule work, the law assigns to every person a domicile at birth which is known as
domicile of origin. According to this rule, a legitimate child takes the domicile of his father.

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An illegitimate child takes the domicile of its mother. A foundling takes the domicile of the
country where it is found.45
It is suggested therefore that an illegitimate child should be presumed to take the domicile of
the head of its family. It should be stressed, however, that this rule is by no means absolute. It
is merely a presumption so that in those cases where a child is virtually reared and maintained
by the mother or her family this presumption may be rebutted. This suggestion has no other
basis than the welfare of the child. It is therefore the childs welfare that must be given
overriding consideration in this regard.
According to this law, almost overwhelming evidence is required to shake off the domicile of
origin.46 Its character is more enduring, its hold is stronger and less easily shaken off.47 As
put by Lord WESTBURY
The domicile of origin is the creature of law and is dependent of the will of the party,
it would be inconsistent with the principle on which it is by law created and ascribed,
to suppose that it is capable of being by the act of the party entirely obliterated and
extinguished. It revives and exists wherever there is no other domicile and does not
require being reacquired or reconstituted animo et facto a manner which is necessary
for the acquisition of a domicile of choice.48
Even Cheshire has suggested that these rules evolve in the nineteenth century when England
was a nation of enterprising pioneers, most of whom regarded their ultimate return home as a
forgone conclusion.49 The revival doctrine (this is done when one abandons his domicile of
choice, such revives back the domicile of origin) as well as the enduring character of domicile
of origin appear to rest on the assumption that a man belongs to his country of origin much
more that to the country of his choice. But this assumption has been dismissed as archaic and
meaningless in an age of migratory population. Perhaps, a better explanation for the
development of rules of domicile of origin in its rigid sense from the view of Rabel who
wrote that;

45

Dicey and Morris , The conflict of laws ( 8th ed. 1967) , Rule 6 (3)
Udom v Udom (1962) L. L .R 112
47
Winans v Att. Gen (1904) A.C.287 at 290,Per Lord MACNAGHTEN
48
Cheshire: Private International Law (7th Ed) at 164
49
Wolff: m, Private International Law (2nd Ed 1950)p.109
46

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The doctrine of domicile of origin was maintained and developed to satisfy the natural
desire of a home country from which innumerable colonizer have gone out into the world50
While a person may easily sever his connection with the country of his nationality (where
that is the connecting factor) he remains, for all times, a miserable prey to his domicile of
origin.51 Undoubtedly, the revival doctrine of domicile of origin runs counter to the
fundamental principle of domicile as it may locate a persons domicile in a country which
cannot be regarded as his home by any stretch of the imagination.
The rule of domicile of origin might have been good law in an era where families were born
and when they lived and died in the same community and when the ties, both material and
sentimental, which bind one to his birth place, were strong.52 But under the present political
arrangement in Nigeria where state boundaries bear little relation to ethnic loyalty, to adopt
such rules will be socially undesirable if not legally embarrassing. Moreover the mobility of
society generally has provoked, even in England, an almost unanimous critism of this rule
and the recommendation for its change. Indeed the English rules of domicile of origin have
found a place in American law.53

DOMICILE OF CHOICE
Any person who is not dependent on another (i.e. one who is not a child or a mentally
disordered person) can acquire a domicile of choice or may change his domicile by taking up
residence in another country with the intention of remaining there permanently.54
The two requisite here is residence and intention and they are normally referred to as factum
and animus respectively. It is not essential that the factum and animus should come in any
particular order so long as it comes at a point in time. These two factors must coincide before
the law will recognize a change of domicile. Residence however long in a country will not
result in the acquisition of domicile of choice, if the necessary intention is lacking.55
Conversely intention however strong to change a domicile will not have the result if the
50

Rabel: E, The Conflict of Laws : A Comparative study ( 2nd Ed.1958) vol 1, p.165
Cheshire: Private International Law (7th Ed) at 165, the domicile of origin transcends even nationality
instability and permanence.
52
Goodrich and Scoles: Conflict of Laws (1964) 39
53
Beale, Treatise on the conflict of Laws (1935) at pp. 184-185
54
Ibid at 17
55
Jopp v Wood (1865) 4 D.J & S.616: Winans v Att. Gen.(1904)A.C.287
51

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necessary residence in the new country is lacking. A new domicile is not acquired until there
is not only a fixed intention establishing a permanent residence in the new country, but until
also this intention has been carried out by actual residence there.56 Hence, a domicile cannot
be acquired in itinere, it is necessary not only to travel, but to arrive. It is very difficult to
keep the two requirements of residence and intention watertight compartments, but in the
nearest of clarity of exposition they must be considered separately. However, residence and
intention are separate but interrelated concepts.
Every independent person can acquire a domicile of choice by the combination of residence
and intention of permanent or indefinite residence.
Residence
Residence means physical presence as an inhabitant57. It is not necessary that residence
should be of long duration.
In an American case58, part of a day was enough. An immigrant can acquire a domicile
immediately on arrival if he or she intends to settle.
In Puttick v Att-Gen59, it was held that a domicile of choice cannot be acquired by illegal
residence (in this case it was claimed by a member of a German terrorist group). It may not
follow that an English court would say that domicile of choice could not be acquired by
illegal residence in a country outside the United Kingdom: for example, an Al-Qaida
member with a domicile of origin in Saudi Arabia living permanently in Germany.
A Full Bench of the Kerala High Court in T. J. Poonen v. Rathi Varghese60after considering
various decisions gave the following propositions:
1. To constitute residence it is not necessary that the party or parties must have his or their
own house.
2. To constitute residence the stay need not be permanent; it can be temporary, so long as
there is animus manendi or an intention to stay for an indefinite period.
56

Bell v Kennedy (1868) L .R 1 Sc & div, 307,319 Per Lord Chelmsford

IRC v Duchess of Portland [1982] Ch 314, 318319
58
White v Tennant 8 SE 596 [1888]
59
([1980] Fam 1)
60
AIR 1967 Kerala 1 (FB)
57

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3. Residence will not take in a casual stay in, or flying visit to a particular place; a mere
casual residence in a place for a temporary purpose, with no intention of remaining, is not
covered by the word reside.
4. Residence connotes something more than stay; it implies some intention to remain at a
place, and not merely to pay it a casual visit.
5. As emphasized by the Supreme Court, by staying in a particular place, in order to
constitute residence, the intention must be to make it his or their abode or residence,
either permanent or temporary.
6. The expression last resided also means the place where the person had his last abode or
residence, either permanent or temporary.
7. Where there has been residence together of a more permanent character, and a casual or
brief residence together, Courts have taken the view that it is only the former that can be
considered as residence together for determining the jurisdiction.
8. The question as to whether a particular person has chosen to make a particular place his
abode, is to be gathered from the particular circumstances of each case.
Intention
Intention is intention to reside permanently or indefinitely in a country, that is not for a
limited period or a particular purpose. If the person will leave upon the occurrence of a
contingency, this possibility will be ignored if the contingency is vague and indefinite (e.g.
winning the lottery), but if it is clearly foreseen and reasonably anticipated (e.g. coming to the
end of employment), it may prevent the acquisition of a domicile of choice.
Naturalisation is relevant, but it is not decisive as a matter of law. It is a circumstance and any
circumstance which is evidence of a persons residence, or his intention to reside permanently
or indefinitely, must be considered in determining whether he has acquired a domicile of
choice in that country.
Most disputes as to domicile turn on the question of whether the necessary intention
accompanied the residence. A court has said There is no act, no circumstance in a mans life,
however trivial it may be in itself, which ought to be left out of consideration in trying the
question whether there was an intention to change the domicile. A trivial act might possibly

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be of more weight with regard to determining this question than an act which was of more
importance to a man in his lifetime61.
Cheshire, North and Fawcett (p.164) say:
Nothing must be neglected that can possibly indicate the bent of the residents mind. His
aspirations, whims, amours, prejudices, health, religion, financial expectations
A person whose domicile is in question may testify as to his intention, but courts view the
evidence of an interested party with suspicion. Declarations of intention made out of court
may be given in evidence by way of exception to the hearsay rule. Declarations of intention
must be examined by considering the persons to whom, the purposes for which, and the
circumstances in which they are made, and they must further be fortified and carried into
effect by conduct and action consistent with the declared expressions 62. It has been said that
to acquire a domicile of choice there must be a residence freely chosen, and not prescribed or
dictated by any external necessity, such as the duties of office, the demands of creditors or the
relief from illness63.

DOMICILE BY OPERATION OF LAW

The rules of Private International Law in India are not codified and are scattered in different
enactments such as the Civil Procedure Code, the Contract Act, the Indian Succession Act,
the Indian Divorce Act, and the Special Marriage Act etc. In addition, some rules have also
been evolved by judicial decisions. In matters of status or legal capacity of natural persons,
matrimonial disputes, custody of children, adoption, testamentary and intestate succession
etc. the problem in this country is complicated by the fact that there exist different personal
laws and no uniform rule can be laid down for all citizens.
The distinction between matters which concern personal and family affairs and those which
concern commercial relationships, civil wrongs etc. is well recognised in other countries and
legal systems. The law in the former area tends to be primarily determined and influenced by
social, moral and religious considerations, and public policy plays a special and important
role in shaping it. Hence, in almost all the countries the jurisdictional, procedural and
61

(Drevon v Drevon [1864] 34 L J Ch 129, 133)

(Ross v Ross [1930] AC 1, 67)
63
(Udny v Udny [1869] L R 1 Sc & Div 441, 458)
62

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substantive rules that are applied to disputes arising in this area are significantly different
from those applied to claims in other areas. That is as it ought to be. For, no country can
afford to sacrifice its internal unity, stability and tranquility for the sake of uniformity of rules
and comity of nations which considerations are important and appropriate to facilitate
international trade, commerce, industry, communication, transport, exchange of services,
technology, manpower etc. This glaring Tact of national life has been recognised both by the
Hague Convention of 1968 on the Recognition of Divorce and Legal Separations as well as
by the Judgments Convention of the European Community of the same year.
Article 10 of the Hague Convention expressly provides that the contracting States may refuse
to recognise a divorce or legal separation if such recognition is manifestly incompatible with
their public policy. The Judgments Convention of the European Community expressly
excludes from its scope (a) status or legal capacity of natural persons, (b) rights in property
arising out of a matrimonial relationship, (c) wills and succession, (d) social security, and (e)
bankruptcy. A separate convention was contemplated for the last of the subjects.
We cannot also lose sight of the fact that today more than ever in the past; the need for
definitive rules for recognition of foreign judgments in personal and family matters, and
particularly in matrimonial disputes has surged to the surface. Many a man and woman of this
land with different personal laws have migrated and are migrating to different countries either
to make their permanent abode there or for temporary residence. Likewise there is also
immigration of the nationals of other countries. The advancement in communication and
transportation has also made it easier for individuals to hop from one country to another. It is
also not unusual to come across cases where citizens of this country have been contracting
marriages either in this country or abroad with nationals of the other countries or among
themselves, or having married here, either both or one of them migrate to other countries.
There are also cases where parties having married here have been either domiciled or residing
separately in different foreign countries. This migration, temporary or permanent, has also
been giving rise to various kinds of matrimonial disputes destroying in its turn the family and
its peace. A large number of foreign decrees in matrimonial matters are becoming the order
of the day.

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The jurisdiction assumed by the foreign court as well as the grounds on which the relief is
granted must be in accordance with the matrimonial law under which the parties are married.
The exceptions to this rule may be as follows:
1. where the matrimonial action is filed in the forum where the respondent is domiciled
or habitually and permanently resides and the relief is granted on a ground available
in the matrimonial law under which the parties are married;
2. where the respondent voluntarily and effectively submits to the jurisdiction of the
forum as discussed above and contests the claim which is based on a ground available
under the matrimonial law under which the parties are married;
3. where the respondent consents to the grant of the relief although the jurisdiction of the
forum is not in accordance with the provisions of the matrimonial law of the parties.
The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does
no injustice to any of the parties. The parties do and ought to know their rights and
obligations when they marry under a particular law. They cannot be heard to make a
grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule
also has an advantage of rescuing the institution of marriage from the uncertain maze of the
rules of the Private International Law of the different countries with regard to jurisdiction and
merits based variously on domicile, nationality, residence -- permanent or temporary or ad
hoc, forum, proper law etc. and ensuring certainty in the most vital field of national life and
conformity with public policy. The rule further takes account of the needs of modern life and
makes due allowance to accommodate them. Above all, it gives protection to women, the
most vulnerable section of our society, whatever the strata to which they may belong. In
particular it frees them from the bondage of the tyrannical and servile rule that wife's
domicile follows that of her husband and that it is the husband's domiciliary law, which
determines the jurisdiction and judges the merits of the case.

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JUDICIAL RESPONSE
In a recently reported decision of Naina Saini v. State of Uttarakhand,64 a Single Judge of
the Uttarakhand High Court has revisited the law relating to domicile of a person to declare
that there is no separate domicile for each State and there is only one domicile for the entire
country. The decision was rendered in the wake of the challenge to the decision of the
Uttarakhand local authority's order denying OBC domicile certificate to the petitioner on the
ground that though she was born in Uttarakhand but since she had married a person from
Delhi, she no longer possessed the domicile of the State of Uttarakhand. The High Court held
otherwise.
In the case of Dr.Pradeep Jain v. Union of India, the Supreme Court observed: The entire
country is taken as one nation with one citizenship and every effort of the Constitution
makers is directed towards emphasizing, maintaining and preserving the unity and integrity
of the nation. Now if India is one nation and there is only one citizenship, namely, citizenship
of India, and every citizen has a right to move freely throughout the territory of India and to
reside and settle in any part of India, irrespective of the place where he is born or the
language which he speaks or the religion which he professes and he is guaranteed freedom of
trade, commerce and intercourse throughout the territory of India and is entitled to equality
before the law and equal protection of the law with other citizens in every part of the territory
of India, it is difficult to see how a citizen having his permanent home in Tamil Nadu or
speaking Tamil language can be regarded as an outsider in Uttar Pradesh or a citizen having
his permanent home in Maharashtra or speaking Marathi language be regarded as an
outsider in Karnataka. He must be held entitled to the same rights as a citizen having his
permanent home in Uttar Pradesh or Karnataka, as the case may be. To regard him as an
outsider would be to deny him his constitutional rights and to derecognise the essential unity
and integrity of the country by treating it as if it were a mere conglomeration of independent
States.
Also, in the case of Dr.Yogesh Bhardwaj v. State of U.P, the Supreme Court observed:
Domicile', being a private international law concept, is inapposite to the relevant
provisions, having no foreign element, i.e., having no contact with any system of law other
64

AIR 2010 Utr 36

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than Indian, unless that expression is understood in a less technical sense. An expression,
which has acquired a special and technical connotation, and developed as a rule of choice or
connecting factor amongst the competing diverse legal systems as to the choice of law or
forum, is, when employed out of context, in situations having no contact with any foreign
system of law, apt to cloud the intended import of the statutory instrument.
In the case of Mr. Louis De Raedt v. U.O.I the Supreme Court observed: For the
acquisition of a domicile of choice, it must be shown that the person concerned had a certain
State of mind, the animus manendi. If he claims that he acquired a new domicile at a
particular time, he must prove that he had formed the intention of making his permanent
home in the country of residence and of continuing to reside there permanently. Residence
alone, unaccompanied by this state of mind, is insufficient. The burden to prove that the
petitioners had an intention to stay permanently in India lies on them. The fundamental right
of the foreigner is confined to Article 21 for life and liberty and does not include the right to
reside and settle in this country, as mentioned in Article 19(1)(e), which is applicable only to
the citizens of this country. The power of the Government in India to expel foreigners is
absolute and unlimited and there is no provision in the Constitution fettering this discretion.
The legal position on this aspect is not uniform in all the countries but so far the law that
operates in India is concerned, the Executive Government has unrestricted right to expel a
foreigner.
In Y. Narasimha Rao v. Y. Venkata Lakshmi, the Supreme Court observed: As pointed out
above, the present decree dissolving the marriage passed by the foreign court is without
jurisdiction according to the Act as neither the marriage was celebrated nor the parties last
resided together nor the respondent resided within the jurisdiction of that court. The decree
is also passed on a ground that is not available under the Act, which is applicable to the
marriage. What is further, the decree has been obtained by appellant 1 by stating that he was
the resident of the Missouri State when the record shows that he was only a bird of passage
there and was ordinarily a resident of the State of Louisiana. He had, if at all, only
technically satisfied the requirement of residence of 90 days with the only purpose of
obtaining the divorce. He was neither domiciled in that State nor had he an intention to make
it his home. He had also no substantial connection with the forum.

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BIBLIOGRAPHY
1. http://india.indymedia.org/en/2005/04/210449.shtml
2. https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&cad=rja&
uact=8&ved=0ahUKEwj5ypec4frLAhWNco4KHQ9zA6oQFgg3MAM&url=http%3
A%2F%2Flegalperspectives.blogspot.com%2F2010%2F08%2Fonly-one-domicilefor-entire-india-high.html&usg=AFQjCNGbuc1DuP8rWdTzt8SE326jdb86w&bvm=bv.118443451,d.c2E
3. Dicey and Morris; Private International Law (8th ed.1969)
4. Goodrich and Scoles; Conflict of laws (1964)39
5. Graveson; conflict of laws (1969)
6. Morris, Private International Law 4th ed by J.C Mclean Sweet & Maxwell 1993

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