Domicile of Dependent Persons and Private International Law

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INTRODUCTION

In Layman’s language domicile can be defined as a habitual place of existence or living though it marks the thin line difference between the place of Residence. This can be associated with the person being born or raised in that particular place. According to Black Law’s Dictionary Domicile means living in that locality with the intent to make it a fixed and permanent home and residence means living in a particular locality. Domicile is more beneficial for legal purposes which is a deciding factor for legal support and aid.

 Any person residing in any part of the world has the fundamental rights adhered to him/her of that particular nation. Lord Cranworth in Whicker v. Hume stated domicile as a permanent home. An Indian woman married to an NRI and later settling with him in a foreign state that too for the rest of her lifetime, her domicile will be considered that of the foreign nation. The law of Domicile plays a necessary element in having the ownership of their property, taxes, will, their childbirth, and, also their marriage validity. Likewise said in the above example when a domicile is lost another domicile is acquired. Domiciles can be classified in different forms, namely: Domicile of origin, domicile of choice, and domicile by operation of law. Domicile of origin by its name can be easily understood if the person born in that particular country or place acquires the particular domicile. Domicile of choice when a person is acquired when that person moves or settles in a different place and Domicile by operation of law is where the law is the deciding factor for the domicile of certain people be it minor or an incompetent person. The Law of domicile can be sui generis in nature depending upon the nation to nation.

HISTORY

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Domicile has always been a matter of choice and also depending upon the nature of the case. Dating back to history several instances have given a stronghold on the choice of Domicile. Taking the reference of the case Udny v.Udny where the House of Lords upheld that any person has free will to reside anywhere and the domicile should not be imposed rather be free in nature. 

Romans being the first to have codified law it is also known as the mother of the concept of domicile law in the common law. Domicile is derived from the word Domicilium which is hence derived from the word domum colere which means to live in.The Bishop of the Diocese( a district under pastoral care ) and his domicile was considered by his habitual residence in England. The Bishop of the Diocese of the domicile had ecclesiastical jurisdiction 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 deals with marriage, the place where a man habituates, of his dwelling place, and domicilium is a habitation or a dwelling

LEGISLATIVE FRAMEWORK

The domicile of a married woman in England is dependent upon her husband despite of them living together or separated by law. Since time immemorial women have faced several issues related to domicile as they are entitled to their husband’s domicile. But a woman can file a divorce if she is residing in England and if her husband has left her. This statutory right is guaranteed by the Matrimonial Causes Act, 1937 Section 13. The subject of domicile was first discussed in the Private International Law Committee in 1954 by the Lord Chancellor who also established it as well. This Report laid a clear emphasis on the married woman to have the domicile of her husband and only if she would be granted her separate domicile that of the divorce. 

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Many years later in 1973 The Domicile and Matrimonial Proceedings Act 1973 laid down the provision for married women to have separate domiciles. The United States has also been on the patriarchal approach for many years where the husband had the right to decide the domicile of his wife and children which was later the concept of dependent domicile that has been swiped.

Coming to the main concern of the paper focusing on the domicile of dependent people, these are for a married woman, newly born and also for people with an unsound mind, in short, we can say it is for incompetent people. The illegitimate child has the domicile of his/her mother. In Gaffney v. Gaffney the court said that the domicile changes with that of the husband for this particular case but there may rise a possibility where the woman has not left her domicile but the man had already settled in a whole new different place. These situations might help in getting constitutional remedies at a certain point in time. In India, the illegitimate child is considered legitimate under the Muslim law but this can only be done if it is uncertain whether the parties were married, and not if it is established that they were not.  

A person with an unsound mind has the domicile of where he/she was treated the same. Though a person being born insane is considered dependent and hence the Indian Succession Act, 1925 says that a lunatic person cannot acquire an independent domicile. The adopted child will have the domicile of his/her adoptive parents. 

It is all a matter of the thinking process. For how many times a person has to suffer because of someone else’s fault. This does affect the person physically but mentally too. The person is left barehanded. Is the law always favorable when taking these kinds of cases? Are these cases always justified? the answer may be uncertain. But to the very best of courts. Whatever decision is taken is taken in the hue of the situation of the depending cases being presented. The term domicile is not defined in the constitution. The domicile of a person is in that country in which he/she either has or is deemed by law to have his/her permanent home. Domicile rights cannot always be positive, different nations have different domicile laws. Legal and social uncertainties may arise from time to time. 

CONCLUSION

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Keeping an eye on the focal point and understanding the importance of a person’s rights is necessary. It often overshadows the rights of the person and considers the sovereign power of the nation first. Are we as people able to dwell in the possibility that justice rendered is always in the correct form? In India domicile is an essential element for acquiring citizenship. Yet the countries have different laws the least which is the end result of this territorial dispute. Sovereignty rule of law, transparency and, freedom of navigation in the international seas, and peaceful dispute resolutions allow citizens to have trust in placing their affirmed rights in the particular place they are residing. The general principles of domicile state that no person can be without domicile, no person can have a dual domicile, the existing domicile will be entertained until and unless the new domicile has not been acquired and domicile is that important link wh connects the person to its local laws and customs of that particular country. The Law District denotes that of territorial law. In India, the state has independent power to make laws concerning marriage, divorce, succession, etc. When a person is found with dual domicile the invariable proof lies upon the person who has been alleged. In a case involving a foreign element, the question as to where a person is domiciled is to be determined according to the English concept of domicile and not according to the foreign concept. In other words, for the purpose of English Private International Law, domicile means domicile in the English sense. Thus in the eye of English law, a person domiciled in England may acquire a domicile of choice in France if he satisfies the English rules, although he may fail to satisfy the French rules. The thought for better societal living has already been initiated with several amendments in the law of domicile. India and the world do not merely see the benefit of one party but both the parties being involved are equally given their rights and weightage is given to the truth and substantiate. Legal aid may reassure the fresh start of the dependent domicile person of its own individual domicile when they are being avoided of their own rights. 

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