BY
ADV. CAROLINE ELIAS
CONFLICT OF LAWS
DOMICILE OF SPECIAL
CATEGORIES & DEPENDENTS

Special categories of people & status of domicile
 Under normal circumstances. Intention to settle down in another country
must be free and voluntary.
Sometimes, it may not be so.
For eg:- (1) Refugees (2) Fugitives
 (1) Refugees:
When a person leaves a country because of any kind of persecution, &
moves to another country – will that persons domicile of origin will be
abandoned? Can he acquire a domicile in the country of refugee?
In the case of large-scale movement of people, for e.g:- in Bangladesh,
the answer is that a new domicile of choice is not acquired.
But the position is different in the case of individual refugees. He may
reach a new place out of force of circumstances and not voluntarily but
may choose to make that place his home at a later date.
In that case, he may have acquired domicile by choice in the country of
refuge.

In Mandal v. Mandal(1956)
During Nazi invasion of Austria in 1939, two Austrian domiciled
persons fled and arrived in India. They remained here and did not
ever return to Austria neither did they ever entertain such intention .
A full bench of Punjab High Court held that the two Austrians had
acquired a domicile of choice in India.
 (2) Fugitives:
Two categories of people will come under this head. They are:-
(i) Those who have fled their country to escape consequences of
crime and from criminal liability
(ii) Those who escape from civil liabilities, like debtors who try to
escape from creditors.
Though their act is not voluntary, yet they intended to settle in
the new country and hence they have acquired domicile of choice
in the place where they arrived from the country of their origin.

 Here the attending circumstances could possibly be the fact that
he had remained in the country where he settled for a long period
of 20 yrs or if it is established that the fugitive had no chance of
escaping liability if he returned to his home country and as such
stayed in the new place for long, it is reason enough to prove his
intention for domicile of choice in the new place.
 Abandonment of the Domicile of Choice
Domicile of choice is said to have been abandoned when –
‘factum et animus’ i.e. residence and intention to reside, no longer
exist.
In Goods of Raffenels(1863)
Madame Raffenel, left her domicile of origin in England &
acquired a domicile of choice in France. She left on a cross-
channel steamer, with the intention of leaving France for good but
took ill at the Port of Calais (Northern France), where she was
shifted to a hospital and died there.

On abandonment of domicile by choice either a new domicile of
choice is acquired, or there is a revival of domicile of origin.
English courts have held that for the abandonment of domicile of
origin a stronger proof is required as compared to the abandonment
of domicile of choice.
DIFFERENCES:
Domicile of Origin Domicile of Choice
(1)It comes into existence by (1) It is completely based on
operation of law Factum et animus
(2) It is independent of the person’s (2) It is based on free volition
volition or will or will of the person
(3) There is a presumption in favour (3) It requires substantive
of the continuance of the domicile proof of existence of
of origin. Domicile of origin.

DOMICILE OF DEPENDENTS :
 Dependents u/Private International law are considered to be persons who
are incapable of having a domicile of choice.
 Such persons’ domicile changes only when to whom he is dependent will
change his domicile.
 This category includes:-
(1) Minors (2) Married women (3) Mentally challenged / Lunatics
(i) Married Women :
 Her domicile changes as her husband changes his domicile.
 Issue arises as they gets a divorce or seperation.
 In English law, if marriage is void- wife does not acquire husband’s
domicile
 Acquiring husbands domicile has been subjected to severe criticism.
 By the Domicile and Matrimonial Proceedings Act 1973 (English
Act) this condition stands abolished.

 In India we don’t have any such provisions.
 In India u/ Indian Succession Act, 1925 – specified that, on
marriage, wife acquires husband’s domicile & during subsistence
of marriage.
 It is only in 2 cases – wife can acquire her own domicile of
choice:-
(1) If living seperately under a decree of court
(2) If husband is undergoing a sentence of imprisonment for life
(ii) Minor Children:
 Under Indian Law, minority age is below 18 yrs.
 Under English Law, minority age is below 16 yrs.
 A legitimate child obtains Fathers domicile & an illegitimate child
obtains Mothers domicile.
 An adopted child’s domicile is same as that of his adoptive parents.
It remains same during the lifetime of the adoptive parents.

Minor after death of Parent:
 In English law, upon father’s death – acquires mother’s domicile
(& as she changes)
 In Indian Law, death of father has no change in the domiciliary
status of the minor, it remains the same.
If parents have been seperated:
 In English law – U/ Domicile & Matrimonial Proceedings Act,
1973, the child’s domicile continues to be the father’s domicile;
Mother’s domicile is acquired only in exceptional circumstances.
(iii) Lunatics:
 An insane person cannot acquire a new domicile in any
other way than by his domicile following the domicile of another
person.

 Indian Succession Act also follows the same principle about
lunatic persons.
 Accordingly, a lunatic can acquire only a domicile of dependence
by following the domicile of another person and not an
independent domicile of choice.
 But whose domicile the lunatic should have is not answered by
any Laws.
 The expression ‘another person’ in the Indian Succession Act
probably means the person having the care and custody of the
lunatic.
Commercial / Quasi Domicile:
It is not a domicile in true sense. It comes into effect only during
war time as a test of enemy character. Residence & intention are
not essential in the case of this type of domicile. A person may not
reside in enemy territory but if he carries on business there, he
gets invested with commercial domicile.