INTRODUCTION-
This blog article, which was originally written as a research paper is an attempt at understanding laws relating to domicile and residence in India. It aims to answer the following research questions-
What do you mean by domicile and residence?
What are the differences between domicile and residence?
What are currently the rules relating to domicile and residence in India?
What are the important case laws with regards to domicile and residence in India?
What are the rules relating to domicile and residence in other countries- specifically United States and Great Britain?
MEANING OF DOMICILE AND RESIDENCE –
Domicile refers to laws relating to identifying a person, when a foreign territory is involved, especially when application of foreign laws are concerned. Domicile refers to the permanent home a person resides in. As per common law rules, the entire country and not the specific territory that a person resides at, will decide domicile of a person. No person can have two or more domiciles or be without one at all. Any person who lives in a particular jurisdiction cannot be called domicile of another jurisdiction. In India, domicile of origin is decided by domicile of father or mother at the time of the child’s birth. In some federal countries two sets of laws apply on citizens, for eg., in United States, Australia, or Canada, or in a composite State like the United Kingdom, the laws that apply on individuals also depend upon the particular territory or region in the country that they reside in. In the domestic legal system, they will be covered under two separate sets of laws, but in case of international laws being involved, only the country’s laws will come into play[1].
However, in India, in spite of being a union of states and having a federal structure, there is only a single national law that is applicable on all citizens, irrespective of where they reside; with slight exceptions like Kashmir. The concept of state domicile does not exist in India. An Indian domiciled in India is a domicile of every state and thus is meant to be under the national legal system. His domicile is within the whole country. Therefore, the concept of domicile is subject to one’s country[2].
The concept of domicile, thus has the following attributes[3]-
Every person will have a domicile
No person can have multiple domicile/s
An existing domicile will be assumed to be functional till a new one is not created.
Residence, on the other hand, refers to the idea of occupation via physical presence, for however short period, provided it is not “transitory, fleeting or casual”. For example- India follows the concept of single citizenship, but according to Indian laws, there are certain conditions wherein a person has to obtain a “domicile certificate”- which is only possible after spending a couple of years in a certain city/town/state, even with multiple residences within them. It can be assumed what was actually meant to be a proof of residence, has been termed to be a “domicile certificate” perhaps as a misnomer. Therefore, intention is irrelevant for deciding place of residence; however it must definitely not be “transitory, fleeting or casual”[4].
Thus, domicile is a broader concept than residence- you can be domicile of a particular country but in your lifetime you can be a resident of several cities/towns/provinces.
DIFFERENCE BETWEEN DOMICILE AND RESIDENCE-
Domicile and residence are similar concepts but share subtle differences.
Domicile refers to a permanent place where a person dwells for a relatively long time. It establishes a legal relation between an individual and a location. It may or may not be his residence as well. Residence, on the other hand is a more temporary concept- referring to the place, i.e. a building or a structure where a person lives. It is dependent upon the place an individual resides at. An individual may be residing at more than one place, but occupies only one at a certain point of time[5].
Domicile is dependent upon the context in question. For instance , when it comes to deciding jurisdiction, a person’s domicile is assumed to be his legal residence which he/she intends to make his/her permanent home. Domicile depends upon two factors- residence and intention to dwell, i.e. “animus manendi”. Domicile, as a broader concept, pervades residence as well, but unlike residence, its scope and significance are much more widespread. Unlike residence, which can be multiple, domicile will always be one at any point in time. Domicile decides personal rights, duties and obligations[6].
Domicile, involves “animus manendi”, i.e. the intention to remain, whereas residence is objective in nature. Domicile and residence may not be the same place for an individual. The usage of the aforementioned terms depends upon the statute in question. However, residence is a more flexible idea as compared to domicile as “permanency of dwelling” is not considered absolute[7].
RULES RELATING TO DOMICILE AND RESIDENCE IN INDIA-
Under the Indian Succession Act, 1925, domicile in India can be categorised into these three types[8]-
(i) Domicile of origin,
(ii) Domicile of choice, and
(iii) Domicile by operation of law.
Explaining these concepts in some detail[9]-
Domicile of Origin- It decides personal laws that will be applicable to an individual. Domicile is decided by the place of birth, which remains in force, till a new domicile is not acquired by an individual. The new domicile is then termed as “domicile of choice”. Domicile of origin starts operating at birth, while for domicile of choice to become functional, intention to dwell for permanent time is important. However, domicile of birth does not lose its relevance if a person merely leaves his country permanently. The person in question must then apply for a fresh domicile. The law does not accept any exceptions.
Domicile of choice- It replaces the domicile of origin upon successful acquisition. This domicile remains in force, till a person decides to acquire a new “domicile of choice” or reverts to his original “domicile of origin”. Burden of proving change of domicile lies on the individual claiming it. Illegal immigration does not lead to a change of domicile. Domicile of choice depends upon animus manendi and residence as well. Thus, any individual who physically resides in a country with an intention to permanently or for an unlimited time dwell in it, acquires domicile in that country. Residence might be multiple or for short durations but intention to permanently dwell is more important. Thus, instances where a person “resides” in another country for educational , commercial or other reasons, with the intention to go back to his established domicile once the said purpose is over does not get the opportunity to stake claim to acquire a domicile of choice in the new country. A person’s “tastes, habits, conduct, actions, ambitions, health, hopes, and projects”, help in determining the animus manendi. If a person, out of voluntary accord, “fixes” the habitation of self and family in a certain place, not out of “transitory, casual or fleeting” purposes, but with more concrete intentions to reside, till unforeseen circumstances might force him to change places for an unlimited time, he acquires a new domicile of choice. Domicile of origin, also depends upon facts and circumstances in individual cases.
Domicile by operation of law (Married women’s domicile): Rules relating to Private International Law have not been collected and codified in a single statue in India and are spread out across acts like Civil Procedure Code, the Contract Act, the Indian Succession Act, the Indian Divorce Act, and the Special Marriage Act etc. Judicial decisions have also shaped this specific type of domicile. In matters like status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc. there are no uniform laws or rules that have been laid down. India, like most other countries has come up with varied personal laws due to social, religious and moral considerations prevalent in the society and the need to avoid antagonising and/or alienating communities. Commercial laws, on the other hand have been made to toe varied international laws and regulations. Hague Convention of 1968 on the Recognition of Divorce and Legal Separations as well as by the Judgments Convention of the European Community of 1968, give states huge freedom in framing of personal laws and rules. Article 10 of the Hague convention allows contracting states the right to not approve a divorce if it is not in sync with their public policy. Judgments Convention of the European Community, excludes the following from its ambit- (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.
IMPORTANT INDIAN CASE LAWS-
Some important judicial decision that the Indian judiciary came up with are-
Naina Saini v. State of Uttarakhand- A single judge bench came up with the ratio that India had a single domicile for the entire country and that states could not be allowed to come up with their respective domiciles[10].
Dr.Pradeep Jain v Union Of India – The Supreme court said that India followed the concept of single citizenship. The constitution makers promoted single citizenship with the purpose of national unity and integrity. Indian citizens are allowed to have residence in any part of the country, irrespective of their original place of birth, language, ethnicity, religion etc. Every Indian citizen is allowed to be engaged in trade, commerce and travel throughout India and will be provided with equal protection of law with other citizens in any part of the country[11].
Louis De Raedt v Union Of India- Supreme Court in this case emphasised on the importance of “animus manendi” or intention of dwelling in order to decide upon acquisition of domicile of choice. The person in question, cannot just rely upon residence inside a country’s territorial limits to stake claim to domicile. He/she must come up with sufficient proof to establish that they intended to occupy the residence for an unlimited time, thus establishing intention to acquire domicile. Foreigners have a limited right to life under Article 21 of the Indian constitution. However, the right to settlement under Article 19 (1) (e) of the constitution is only limited to citizens. Foreigners can be expelled by the government on failure to prove the aforementioned intention. The government has an absolute right to expel foreigners using its executive powers[12].
Y. Narasimha Rao V Y. Venkata Lakshmi – The Supreme Court said that marriages passed by foreign courts would not be accepted under the Indian jurisdiction if it was found that the court lacked jurisdiction. In the aforementioned case, an Indian engineer living in Louisiana had been granted divorce by the local court over there, after having completed a residence of 90 days. The court found that the person in question had with a malafide intention of been granted divorce specifically taken up residence in that state and thus he was neither a domicile or had adequate animus manendi to claim domicie. Thus having had no substantial connection with that state, the Supreme Court overturned the decision of the Court of Louisiana[13].
RULES RELATING TO DOMICILE AND RESIDENCE IN UNITED STATES AND UNITED KINGDOM-
This part of the paper aims to explain how some of the more advanced legal systems, specifically United Kingdom and United States deal with the concepts of domicile, residence and nationality.
United Kingdom-
Residence is decided by the number of days an individual spends in the United Kingdom, place of employment and location of one’s place of residence. United Kingdom allows multiple residences for the purpose of taxation. All residents of United Kingdom are to pay capital gains tax on any income and gains earned from any part of the world. A non-resident, on the other hand has to pay the same for all gains from anywhere in the United Kingdom. Residence generally, does not play a major role in deciding citizenship in the country[14].
In the year 2013, a new set of rules were formulated to decide if a person was a resident or non-resident of the United Kingdom[15]-
First automatic overseas test- If a person spends less than 16 days in United Kingdom in a tax year- between6th April to 5th April, every year, he/she would be a non-resident.
Second automatic overseas test- If a person was non-resident for the past three tax years and spends less than 46 days on the 4th tax year.
Third automatic overseas test- If a person spends less than 91 days in United Kingdom during a tax year and/or works overseas full time.
However, if none of the aforementioned tests help in decoding a person’s place of residence, then these tests will be followed[16]-
First automatic UK test- If a person spends 183 days or more in the country during a tax year.
Second automatic UK test- If a person spends consecutive days in the country, including 31 within a tax year, and has a home to tay.
Third automatic UK test- If a person has a place of stay and works full time in the country.
Domicile in United Kingdom, like India, is of three types- choice, origin and dependency. However, unlike India, domicile of origin, in United Kingdom is dependent on the father’s status at the time of a child’s birth. A person of UK domicile is liable to pay inheritance tax and capital gains tax on any gains and income throughout the world. A “non-dom” is someone who is not a domicile of United Kingdom but may reside there[17].
UNITED STATES-
USA follows dual citizenship- the states having their own citizenship as well. Thus, a person in USA, is a citizen of America as well as the specific state they are so residing at currently. Residence in United States has no specific definition. It depends on the place where one is residing at any specific moment and unlike India, they do allow “temporary, fleeting or casual” residence to be taken into consideration. In USA, residence helps in deciding taxation rules to be applicable- for instance in Maryland, six months of residence leads o acquiring residence permit[18].
States in America do not have uniform rules that define the time period for allocating domicile. But, depending on the license in question, they could be as follows[19]-
driver’s licenses—30 days
state university—one year
divorce—six months
Domicile is decided with the help of the following questionnaire[20]-
What does a person consider as his permanent home?
How long has he/she been living in that home?
Where does he/she actually reside?
If they own the residence or have leased it ?
Whether they pay income tax to the same state?
Whether they have familial or professional ties in the state?
Whether they have investments in that state?
Whether they are registered to vote? Or have they previously voted there?
Whether they have bank accounts or other fiscal instruments like deposit boxes located in that state?
Residence is linked with location. Intention is not an important criterion in America as well in establishing residence- though a person may have more than one residence. In order to prove domicile, a person must prove beyond reasonable doubt of having the intention to acquire a new domicile by establishing a permanent home. However, intention is not important in determining a married woman’s domicile. Under common law, on marriage, a woman will lose her old domicile and acquire her husband’s domicile. However, in USA, a woman is allowed to retain her old domicile upon marriage[21].
CONCLUSION
India should come up with a set of dedicated laws to deal with residence and domicile. At present, the laws are scattered and contradictory. While the judiciary has tried to bring in some clarity with the help of detailed ratios, they cannot compensate for lack of proper laws. These laws are necessary for the purposes of taxation and citizenship- as seen in the case of United Kingdom and United States of America. Thus, legislators need to look into this aspect.
[1]Online Resource Centre of Perry4Law Organisation, Law Of Domicile In India, October 6, 2015, available at http://perry4law.org/?p=76 (Last visited on March 3, 2017). [2] Id., 1. [3] The Practical Lawyer, Concept of domicile under Private International Law, available at http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1&id=20970 (Last visited on March 3, 2017). [4] Supra note 1. [5] uslegal.com, Distinctions Between Domicile and Residence, available at https://domicile.uslegal.com/distinctions-between-domicile-and-residence/ (Last visited on March 3, 2017). [6] Id., 5. [7] Id., 6. [8] Supra note 4. [9] Id., 8. [10] AIR 2010 Utr 36. [11] AIR 1984 SC 1420. [12] Writ Petiton (Civil) No. 1410 of 1987 . [13] 1991 SCR (2) 821. [14] CKLG Accountants, Residence and Domicile, May 2014, available at https://www.cklg.co.uk/Upload/cklgaccountantsPWP_APU_May14_residencedomicile.pdf (Last visited on March 3, 2017). [15] Id., 14. [16] Id., 15. [17] Id., 16. [18] American Foreign Service Association, Residence and Domicile, available at http://www.afsa.org/residence-and-domicile (Last visited on March 3 , 2017). [19] Id., 18. [20] Id., 19. [21] Id., 20.
About The Author
Saurabh Kumar is from 2013-2018 batch WBNUJS. He has keen interest in Family Law and Constitutional Law as well as Strategic affairs.