A person who migrates from one part of India to another, carries with him his personal law. When it is alleged that a Hindu who has migrated from one part of the country to another is governed by the local law, then it has to be affirmatively proved that he has adopted it. In regard to Hindus, in respect of codified law, no such problem can, now arise on account of migration, since all Hindus are governed by one uniform law.
Migration of a Muslim to another part of the country does not change his sect or school and he continues to be governed by his original sect or school, unless it is established that he has changed his sect or shcool.
The problem of change of law on account of migration from one part of the country to the other does not arise in the case of Christians, Parsis or Jews, since wherever they may be in India, each is governed by a uniform matrimonial law.
Domcile
In an early case, Balwant Rao v. Baji Rao, the Privy Council observed, "If nothing is known about a person except that he lived in certain place, it will be assumed that his personal law is the law which prevails in that place. In that sense only domicile is of importance." The Privy Council added that if more was known about a person, then, his personal law should be determined accordingly, unless it was shown that he had renounced his original law in favout of the law of the place where he had migrated. This formulation holds valid in respect of person who is in India, and moves from one part of the country to another country whether he would be governed by his old personal law of the law of the country to which he has migrated; it depends whatever he acquired foreign domcile or retains the Indian domicile. Otherwise, under the Indian personal law domicile is not of such importance. The Indian personal law lays down that all those persons who are in India would be governed by their respective personal laws, irrespective of their domicile. Thus, if any two Hindus, Christians, Parsis and Jews are in India, they can marry under Hindu Law, Muslim Law, Christian Law, Parsi Law or Jewish law, as the case may be, irrespective of their domicile or nationality.
Domicile is important in respect of the following:
a. Those Indians who are domiciled in India but are abroad.
b. Those Indian who are not domiciled in India.
Section 1(2), Hindu Marriage Act, 1955, specifically lays down that the provisions of the Act apply to those Hindus who are domiciled in India. This also seems to be the position under other personal laws. It should be noted that the Special Marriage Act, 1954, does not contain a similar provision. The matter in respect of Indian citizens who are abroad is regulated by the Foreign Marriage Act, 1969. The Act provided facility for Indian nationals to marry abroad with other Indian nationals or with the nationals of other countries or foreign domiciled persons. Marriage under the Act has to be monogamous and can be performed only as a civil marriage. Any marriage performed abroad may be registered under the Act, provided one of the parties to the marriage is an Indian national and provided further that the marriage is valid under lex loci celebrationis. The marriage registered under the Act is at par with marriage performed under the Act. The Special Marriage Act, 1954, is applicable to marriages performed or registered under it.
In India, domicile of an Indian citizen may be important in another sense. Indian citizens ordinarily have one domicile, an Indian domicile. Under the Indian Constitution, all matters pertaining to family law are in Concurrent List. The state Legislature has power to amend (though with the prior consent of the President of India) any statute pertaining to any matter of familylaw whenever they feel that regional requirements make such an amendment desirable. When this is done, the State domicile becomes relevant. For instance, the Uttar Pradesh Legislature passed the Hindu Marriage (U.P Amendment) Act, 1962, which amended Section 13, Hindu Marriage Act by introducing, inter alia, cruelty as a ground of divorce. The amended provision applied to those persons who are domiciled in the State at the time of marriage. This meant that an UP domiciled man or woman had married a person domiciled elsewhere would be govered by the Uttar pradesh Act.
The question of domicile came for consideration in an interesting manner, in Yezdiar v. Yezdiar, Wife filed a suit for divorce against her husband under the provisions of the Parsi Marriage and Divorce Act, 1936. The parties were both Zoroastrian immigrations from Iran and were married in Bombay under the Parsi Marriage and Divorce Act. The husband contested the jurisdiction of the court on the ground that the parties were not domiciled in India. The trial court accepted this contention.The appellant court held that an Iranian Zoroastrian could become a Parsi only if he changed his domicile and became an Indian subject and not if he continued to have his domicile and nationality in Iran. This case does not represent good law, since it did not consider certain provisions of the Parsi Marriage and Divorce Act. Section 52(2) lays down that a Parsi, who has been married under the Act will remain bound by the provisions of the Act even though he canges his religion or domicile so long as his spouse is alive or marriage has not been dissolved or declared null and void by a competent court. Section 4 further provides that a Parsi married under the Act cannot contract a second marriage by change of religion or domicile so long as his marriage subsists. Thus, under the Act, the change of domicile or religion is of no consequence and the Act will apply to parties who have married under the Act. In Jamshed Irani v. Banu Irani on similar facts, Yezdiar decision was considered and the court observed that it laid down bad law, and held that once parties were married under the Act, they continued to be goverened by it; change of religion or domicile was immaterial.
Concept of Domicile
The concept of domicile and complications arising thereunder fall more in the realm of private international law than family law, but since complications primarily affect family law, a brief account of the same is given here.
The concept of domicile arose out of the social need that everyone must be connected with some or the other system of law, and this was independently of nationality. A person may not have any nationality, but he must have a domicile. Domicile is used as a connecting factor. A person may have one nationality, yet he may have a domicile in another country. Several countries have several legal systems operating in different parts of country and there the law of nationality has no meaning and, therefore, individual''s connection with a system of law has to be established. The connecting factor in these cases is domicile. A person is connected to a system of law of that territory where he is domicileed. However, in a country like India where personal law community wise, the connection of an individual is to the community, the law of which he seeks to be applied to his has to be found out. In such a case, the connecting factor would be the religion of the individuals; thus, if a person seeks to be governed by Hindu law, Muslim law, Christian law or Parsi law, he will have to show that he is Hindu, Muslim, Christian or Parsi, as the case may be.
Law imputes a domicile to every person and an adult person may also establish his domicile by his free volition. This is called domicile of choice. No person can be without a domicile and not person can have more than one domicile. It is because many rights, obligations, capacities and status are governed by the law of domicile - lex domicili.
Domicile of origin - The maxim that no person can be without a domicile implies that law confers a domicile on every person on birth. This is known as domicile or origin. This domicile continues to stick to a person till he acquires another domicile -- domicile of choice. A minor has no capacity to acquire a domicile of choice, since he is incapable of forming an intention. Under English law, a person who has attained the age of 16 or marries under that age is capable of acquiring a domicile of choice.
Since every person must have a domicile of origin by operation of law, the basis of this domicile is paternity or maternity. Thus, at common law and Indian law the domicile of a legitimate child follows that of a father and of an illegitimate child that of this mother. It is evident that domicile of origin is neither connected with the place where the child is born nor with the place neither connected with the place where the child is born not with the place where its father or mother resides, but on the domicile of the father or mother, as the case may be. Only exception is that the domicile of the foundling is the place where he is found. The peculiarity of the concept of domicile of origin is that no one can give it up till one acquires a new domicile. Even when a person acquires a new domicile of choice, his domicile of origin remains in abeyance and it revives the moment he gives up his choice. Thus, if a person who has his domicile of origin in India, acquires a domicile of choice in England. He later leaves england without any intention of returning there and goes to the United states and yet is uncertain as to in which part of the United States he is to settle and dies while in a hotel in New york. His Indian domicile or origin has revived and he would be deemed to have died domiciled in India. However, under the India law and the U.S. law, the rule is that the domicile of choice continues till a new domicile of choice is acquired.
Domicile by choice - An independent person has capacity to acquire a domicile of choice. Before 1973 under English law, minor and married women has no capacity to acquire a domicile of choice. Under Indian law, that is still the position. For acquring a domicile of choice , two conditions must co-exist: (i) residence in the country of domicile of choice, and (ii) intention to live there permanently. At the moment at which both co-exist, a domicile of choice is acquired. It is immaterial which precedes the other. Thus, a person having an Indian domicile of origin will not acquire of choice in England till he reaches there; conversely, a person who comes to Indian sub-continent and stays in a New Delhi hotel will not acquire a new domicile till he remains undecided as to whether to settle in India or Bangladesh or Pakistan. In this regard the unresolved question is whether a person, who leaves his country or the domicile of origin, should have intention of never returning there or should have no definite intention to return. In other words, if a positive intention not to return is the last, he will not lose his domicile of origin. On the latter test since he lacks a definite intention to return, he would lose domicile of origin.
Domicile of married woman - Under English common law, a woman on her marriage automatically acquired the domicile of her husband and retained it throughout the coverture, and she was incapable of acquiring separate domicile under any circumstances. Thus, even when parties separated by a separation agreement or under a decree of judicial separation, the wife continued to have the domicile of her husband. Not merely this, if a husband after deserting her acquired a new domicile elsewhere, she automatically acquired her husband's new domicile. Lord Denning called it "the last barbaruous relic of wife's sevitude" The last relic of wife's servitude has now been demolished, and the Domicile and Matrimonial Proceedings Act, 1973 provides that a married woman may not retain or acquire an independent domicile like nay other person of full capacity. Her domicile will be ascertained in the same way as that of an independent person. Ordinarily, the married woman would have the same domicile as her jusband, if she and her husband are living together, since they would be sharing the same residence and the same intention of living there. Of course, there are several possibilities when husband and wife may have separate domiciles. Thus, a woman domiciled in England who has married a man domciled in Pakistan will not be able to acquire Pakistani domicile until she goes to Pakistan with an intention to reside there. A couple domiciled in England decides to emigrate to the United States, and the husband goes first and wife is to follow him thereafter a year. The wife will not acquire a new domicile in the United States till she joins her husband there.
The Indian law still follows the old English law, and lays down that the domicile of a married woman is, during marriage, the same as that of the husband and changes with the domcile of her husband. This is unfortunate that we should have blindly aped English law, particularly when the Indian succession act, 1925 provides that in the following two cases, wife may acquire a separate domicile, viz., (i) when wife is living separate under a decree of the court, or (ii) when husband is undergoing a life sentence.
Domicile of children - Both under English common law and Indian law, a minor legitimate child acquires the domicile of its father, and a minor illegitimate child acquires that of its mother. This was called the dependent's domicile of children and it lasted throughout the minority of the child. The result was that even when a husband deserted his wife leaving their minor children with her and acquired a domicile of choice elsewhere, the domicile of children changed with the domicile of the father. The Domicile and Matrimonial Proceedings Act, 1973, has changed this common law rule, and now a child has capacity to acquire a domicile of choice at the age of 16. If the parents of a legitimate child are living apart, the child will have the domicile of that parent with whom it has a home. This does not apply to illegitimate children whose position is unaffected by the statutory modifications.
The Indian law has followed the English law, though the Indian Succession Act lays down some common different rules. Thus, it lays down :
a. The domicile of origin of every person of legitimate birth, is in the country in which at the time of birth its father was domiciled; or if it is a posthumous child, in the country in which its father was domiciled at the time of his death.
b. The domicile of origin of an illegitimate child is in the country in which at the time of its birth its mother was domiciled.
c. The domicile of the child follows the domicile of the parent from whom it derived its domicile of origin.
d. But in the undernoted cases, the child's domicile does not follow that of the parent.
(i) If the minor has married.
(ii) If the minor holds any office of employment in the Government, and
(iii) If the minor has set up, with the consent of the parent, any separate business.
Under the Indian law, a minor child has capacity to acquire an independent domicile on attaining majority, i.e., completion of 18 years of age.
The position of domicile of minor adopted child is the same as that of the natural born child. In India also, this seems to be the position, since the Hindu Adoptions and Maintenance Act, 1956, Section 12 lays down that an adopted child is like a natural born child for all intents and purposes.
The minor female's domicile changes on her marriage and becomes that of her husband. This is still the position under the Indian law. But, under the English law, a minor acquires capacity to have an independent domicile on marriage.
It seems that after the death of both parents of a legitimate child or both adopted parents of an adopted child, or mother of an illegitimate child, the child's domicile cannot be at all changed, until it acquires the capacity to change it. It seems that the testamentary or certified guardian has no such power. It is submitted that the guardian of a minor should have power to change minor's domicile whereever it is for the welfare of the minor.
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