DOMICILE OF MARRIED WOMEN UNDER THE INDIAN

SUCCESSION ACT, 1925

By

H.SIMRAN

18LLB034

Semester: 4th

Name of the programme: 2 year (B.A., LL.B.)

FAMILY LAW- II

Name of the Faculty Member

Dr. P. Vara Lakshmi

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA , SABBAVARAM, VISAKHAPATNAM – 531035 ANDHRA

PRADESH, INDIA

Date of Submission:12 Dec 2020

 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to our lecturer Dr. P. Vara Lakshmi
Ma’am who has given me the golden opportunity to do this wonderful project on the topic
“DOMICILE OF MARRIED WOMEN UNDER THE INDIAN SUCCESSION ACT, 1925”
which also helped me in doing a lot of research and through which I came to know so many
new things. I am really thankful to her.

.
 CONTENTS:

Topic page no.

1. Synopsis………………………………………………………………….1
2. Introduction………………………………………………………………4
3. Background of Law of Domicile…………………………………………6
4. General Principles of Domicile…………………………………………..7
5. Domicile of Dependents………………………………………………….9
6. Judicial interpretations…………………………………………………...13
7. Conclusion……………………………………………………………….19
8. Reference…………………………………………………………………20
 TABLE OF CASES:

Cases Citation
Whicker V Hume (1858) 10 HLC 124
N.Vasundara VS. State Of Mysore AIR 1955 Sc 334
Pradeep Jain Vs. Union Of India (1984)3 SCC 654
Re Egerton’s Will Trusts [1956] 2 All ER 817
Puttick V. A.G
Controller Of Estate Duty Vs Dr. (Mrs.) 1992 42 ITD 427 Coch
Mary Cherian
Controller Of Estate-Duty, Madras V Dr. [1980] 123ITR 104
Ida Bella Scuddar
Neha Saini Versus State Of Uttarakhand & 2009 UTTAR 53
Another Lnind

,
 SYNOPSIS
Title: Domicile Of Married Women Under The Indian Succession Act, 1925

Introduction:

Domicile as a concept is of immense importance, both in municipal law as well as in Private

International Law or the conflicts of laws, as it is called. The concept denotes "the place of
living", or more precisely a permanent residence. Domicile as pointed in Halsbury's Laws of
England (Fourth Edition) Volume 8, Paragraph 421 "is the legal relationship between an
individual and a territory with a distinctive legal system which invokes that system as his
personal law." Although the notion which lies behind the concept of domicile is of
"permanent residence" or a "permanent home", yet domicile is primarily a legal concept for
the purposes of determining what is the "personal law" applicable to an individual and
therefore, even if an individual has no permanent residence or permanent home, even then he
is invested with a "domicile" albeit by law or implication of law. 

Aims And Objectives:

The main aim and objective of the project is to make a detailed study on the Law of Domicile
of women under the Indian Succession Act, 1925.

Scope of the study:

The study analysis the Domicile of Married women in India only. Also the various
interpretations of the word Domicile will be seen in the judicial aspects.

Research questions:

1. Whether the married women can get the domicile of origin while being married.
2. Whether Domicile and Citizenship refer to the same meaning.

Significance of the study:

That is the only country that can be considered in the context of the expression "domicile"
and the only system of law by which a person is governed in India, is the system of law
which prevails in the whole country and not any system of law which prevails in any
province or State. It is hardly necessary to emphasize that unlike the United States of
America, India has a single citizenship. It has a single system of Courts of law and a single
judiciary and we do not have in India the problem of duality that often arises in the American

1
Law, the problem which arises because of a federal citizenship and a State citizenship.
Therefore, in India we have one citizenship, the citizenship of India. We have one domicile -
the domicile in India and we have one legal system - the system that prevails in the whole
country. The most that one can say about a person in a State is that he is permanently resident
in a particular State. But as Halsbury points out, to which we have just made reference, the
mere fact that a man's home may be fixed at a particular spot within the country does not
make him domiciled in that spot but makes him domiciled in the whole country, and
therefore, whether a man permanently resides in Bombay or Madras or Bengal or anywhere
does not make him domiciled in Bombay, Madras or Bengal but makes him domiciled in
India; Bombay, Madras and Bengal being particular spots in India as a country.

Research Methodology:

The researcher has used doctrinal and analytical method of research. The researcher has
confined her study to various books and articles related to Family Law.

Literature Review:

 Indian Succession Act

Citation: Paruck 12th edition 2019
This Title is the most comprehensive and authoritative work on the Indian Succession
Act that explains and illustrates the provisions of the Act in a lucid, comprehensive
and systematic manner. It intends to capture all major landmark judgments of
Supreme Court and various High Courts. All the legislative changes have been duly
incorporated. It is a standard reference for Judges, lawyers, In house Counsels, Law
firms, students, law professors and research scholars. This Edition has been
extensively revised to incorporate the relevant and current landmark judgments of the
Supreme Court and various High Courts. Up to date with the recent case laws and
development since the last publication. Overruled decisions have been checked and
changes have been made accordingly. Synopsis of every chapter has been
incorporated. The book offers a systematic explanation of the provisions of the Act
and is arranged under logical chapters and headings. The Edition contains synopsis of
all the chapters making it user friendly. All the major legislative changes and the
amendments have been incorporated. The Book intends to incorporate landmark
judgements of various High Courts and Supreme Court.

2
 The Matrimonial Domicile And The Property Relations Of Married Persons
Citation: International and Comparative Law Quarterly, Vol. 6, Issue 1
(January 1957), pp. 28-35 Stone, O. M.
The article discusses about the Married Women's Property Act of 1870, eroded by the
Act of 1882, and all but submerged by the following flood of remedial legislation, the
doctrine of unity survives, inter alia (albeit not unscathed) in three important branches
of English law, namely, taxation, 3 nationality,' and the unity of domicile in the
conflict of laws, by which a wife automatically acquires a domicile of dependence
upon her husband, and follows every subsequent change in his domicile. Also theory
is closely linked with Dr. Cheshire's desire to extend the control of the law of the
matrimonial domicile to such matters as the capacity of the parties to marry each
other. The fact is that any theory of unity between husband and wife is bound to come
into conflict with the general principles of the modern English law at two.
 Recent Developments In The Law Controlling Nationality Of Married Women
Citation: George Washington Law Review , Vol. 1, Issue 3 (March 1933), pp.
330-356 Miller, Robert S.
This article is based on the ancient and unvarying maxim that the wife takes her
husband's status, a maxim based on the nature of marriage, which makes two persons
one, giving the husband preeminence over the wife."' This statement, taken with the
fact that Article 12 was adopted without discussion,4 indicates that its provisions
were- no innovation; that the rule conferring upon an alien woman the nationality of
her husband is an old one on the continent.
Prior to the Code of 1804, therefore, there was identity of nationality where an alien
woman married a national, but not where a woman national married an alien. After
the Code was adopted, however, there was single nationality within the marital union
in both instances, so far as the French law was concerned

3
 I. INTRODUCTION

The inception of the concept of domicile is circled with several misconceptions. Sometimes
the term is confused either with nationality or with residence. The general view about
domicile is 'permanent home' but Lord Cranworth in Whicker v Hume 1 .The concept of
domicile in common law is derived from the Roman law. The term domicilium is derived
from domum colere, to foster or inhabit the home. There are three different classes of
domicile namely, Domicile of Origin, Domicile of Choice, and Domicile of Dependence. The
rules of domicile of origin quite satisfactory reflect the social factors. One acquires it at the
time of his birth and because of its strong tenacity it is hard to lose and it automatically
revives once domicile of choice is extinguished. It has proven to be more tenacious in a way
that even if a person leaves his country of origin with an intention never to return back, his
domicile of origin survives until he has acquired a domicile of choice. Corporations are the
entities endowed with legal personality under municipal law, may be likened to physical
persons and, on this basis, regarded as nationals of a particular State. The place of
incorporation is regarded as the domicile of the corporation. Ships are governed by the law of
Flag.

Since the origin of the concept of domicile, there have been several misconceptions attached
to it. Sometimes the term is confused either with nationality or with residence. The general
view about domicile is 'permanent home' but Lord Cranworth in Whicker v Hume has
defined domicile as-

"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
languages will very much help you to it. I think the best I have heard is one which describes
the home as the place 'unde non sit discessurus si nihal avocet; unde cum profectus est,
peregrinari videtur.

A person is said to have domicile in the country where he resides permanently without any
intention of relocating anywhere else. On the other hand, a person does not cease to have his
domicile in a country merely due to the reason of temporary abode elsewhere.

1
(1858) 10 HLC 124

4
The traditional concept of domicile, however, has received criticism from reform agencies in
England as well as in other countries which follow the English common law. This is mainly
due to two grounds, which were also pointed out in 1954 (First Report of the Private
International Law Committee) as follows-

 The contention relates 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 difficulty attached in proving the intention required to acquire a domicile of
choice.

The concept of Domicile is crucial since it is the connecting factor traditionally used in
common law systems. There is no uniform concept of domicile and so interpretation of its
meaning is largely left open to the lex fori.

5
 II. BACKGROUND OF LAW OF DOMICILE

Roman law is considered to be the mother of the concept of domicile in common law. 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. In the ancient times, 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 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 dealing with marriage characterise the place where a man
dwells, of his dwelling place; and domicilium is a habitation or a dwelling.

Importance of Domicile:
Domicile acts as a connecting factor for various legal systems.

 Domicile 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.
 Domicile 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.
 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 means permanent home, and if that was not understood by itself no illustration
could help make it intelligible” 2.According to MORRIS definition in “It is important to
identify an individual’s personal law, which governs questions concerning the personal and
proprietary relationships between members of a family. Place of birth is an inadequate criteria
by which to identify the personal law”3.The domicile of a person is in that country in which
he either has or is deemed by law to have his permanent home. The concept of domicile has
been explained by a distinguished American Judge, Oliver Wendell Holmes J, “the very
meaning of domicile is the technically pre-eminent headquarters that every person is
compelled to have in order that certain right and duties that have attached to it by the law may
2
Paras Diwan: Private International Law,4th (End),p145.
3
Morris, the Conflict of Laws, 7th Edition, p29.

6
be determined”4 .All authors explained in same way. We are following common law for
concept of domicile because they is no proper law in India.

III. GENERAL PRINCIPLES OF DOMICILE

Under both Indian and English private international law there are four general rules in respect
of domicile5

i. No person can be without a domicile;

ii. No person can at the same time have more than one domicile;
iii. An existing domicile is presumed to continue until it is proved that a new domicile
has been acquired; and
iv. Domicile denotes the connection of a person with a territorial system of law.

No person can be without a domicile: This rule is based upon the practical necessity of
connecting every person with some legal system by which questions affecting his family
relations and family properties are to be determined. “It is a settled principle” 6. In case of
Udnv vs. Udny “that no man shall be without a domicile, and secure this result the law
attributes to every individual as soon as he is born, the domicile of his father, if the child is
legitimate and the domicile of mother if illegitimate this has been called the domicile of
origin and is involuntary. Domicile of origin prevails until a new domicile has been acquired.
But the moment a person loses his acquired domicile his acquired domicile, the domicile of
origin springs back to him

A person cannot have more than one domicile: At any given time through dual citizenship
is permitted by several countries. Main object of this rule is the same as that of the first time
to connect a person with a definite legal system. Domicile signifies connection with a
territorial subject to a single legal system of law. What is sometimes called a “law district”.
Like a federal state where the legislative authority is distributed between central and state
legislatures, the law district is, generally the state where the concerned person has established
his home. Like citizenship domicile is also one for the whole of India, Clarifying the
impression created in D.P Joshi VS. Madhya Bharat and N.Vasundara VS. State of Mysore 7
that as state have independent power to make laws with respect to marriage, divorce,
succession, etc... they may create different legal system for the purpose of domicile, the
4
Williams V.Osenton(1914).
5
Paras Diwan: Private International Law,4th (End), Deep & Deep Publication, p145
6
Ibid, p153.
7
AIR 1955 Sc 334.

7
supreme court in Pradeep Jain vs. Union of India8 held that in these two cases the word
domicile was used to convey the India the idea of intention to reside permanently or
indefinitely” for the purpose of admission to medical or other technical institutions within a
state and not in the technical sense in which it is used in private international law.

Presumption in favor of an existing domicile: An existing domicile is presumed to

continue until it is proved that new domicile has been acquired. Hence the burden of proving
a change of domicile lies invariable on those who allege that a change has occurred. If the
evidence adduced is conflicting or is not convincing, then court has to decide in favor of
existing domicile.

Domicile is determined according to English law: In a case involving foreign element, the
question as to where a person is domiciled is to be determined according to English concept
of domicile and not according to foreign concept. In other words, for the purpose of English
Private International Law, domicile means domicile in English sense. Thus in the eye of
English law, a person domicile in England may acquire a domicile of choice in Frances if he
satisfies the English rules, although he may fail to satisfy the French rules.

Kinds of Domicile:

There are three different classes of domicile namely-

Domicile of Origin,

Domicile of Choice, and

Domicile of Dependence

IV. DOMICILE OF DEPENDENTS

8
(1984)3 SCC 654.

8
Which means that the domicile of the dependent person/s is dependent on, and usually
changes with, the domicile of someone else? The object of determining a person’s domicile is
to connect that person with some legal system for certain legal purposes. In General at
Common Law, dependents, that is, married women, minors and mentally deficient persons
were regarded as incapable of acquiring a domicile on their own, and their domicile followed
that of the person they were regarded as being dependent on. The Common law rule provided
that wives are dependents of their husbands, minors the dependents of the parent through
whom the minor derives his domicile of origin, the father in the case of legitimate children
born whilst he was alive and the mother in the case of both illegitimate children and
legitimate children born after the death of the father ,9whilst they remain dependents,
dependent persons cannot independently change their domicile of origin if on the other hand
the husband or the appropriate parent change his or her domicile, the domicile of the
dependent usually change with the domicile of such persons.

DOMICILE OF MARRIED WOMEN

A wife’s domicile during her marriage follows the domicile of her husband.

Exception.—The wife’s domicile no longer follows that of her husband if they are separated
by the sentence of a competent court, or if the husband is undergoing a sentence of
transportation.

[s 16.1] Married woman’s domicile.—

The doctrine that the domicile of the wife is that of her husband is founded on the duty of the
wife to live with her husband. Therefore, it is enacted by section 15 that by marriage, a
woman acquires the domicile of her husband 10and section 16 provides that during marriage
the wife’s domicile follows that of her husband. This rule has been described as the last
barbarous relic of a wife’s servitude by Lord Denning MR in Gray v Farmosa. Sometimes
parties before marriage contemplate change of domicile shortly after marriage. In such a case,
the law of the country in which the parties intended to settle immediately after marriage and
in which country they did in fact settle and in which they could foresee they would remain for
the rest of their married life, should be allowed to govern their mutual proprietary rights.
Such an agreement between parties to a marriage made before marriage to change their
domicile immediately after marriage may be enough to lead the court to infer that the parties

9
Section 7, Indian Succession Act 1925.
10
Christoper Andrew v Anne Andrew Neelakantan, AIR 1959 Raj. 133 [LNIND 1959 RAJ 162] .

9
intended to acquire a new domicile from the moment of their marriage. 11 A widow retains
domicile of her late husband until it is changed by her. A married woman acquires the
domicile of her husband if she has not the same domicile before marriage. The wife’s
domicile follows that of her husband and so long as the marriage is subsisting, she cannot
acquire a separate domicile of her own. Nothing short of dissolution of marriage will enable a
married woman to claim a separate domicile. A married girl cannot change her domicile at
her will so long as she is married and where she is a minor, the only person who can decide
the question is her husband, being the legal guardian.

[s 16.2] Exception.—
By the Exception to section 16 it is enacted that the wife’s domicile will not follow that of her
husband:

i. If they are separated by the sentence of a competent court, i.e. by divorce or by

judicial separation.131 But if the marriage is void from its inception the wife will not
have changed her domicile by virtue of such void marriage. If, however, the marriage
is voidable the wife will have acquired her husband’s domicile until the marriage is
declared void.
ii. If the husband is undergoing a sentence of transportation.

Except in these two cases this Act does not recognise the acquisition by wife of a domicile
other than that of her husband. Such a right was not even recognised by English Law upto
1956. In that year however, Danekwerts J, held on the facts of the case he was trying that the
testatrix who resided in Guernsey at the time of her death and had lived there for ten years,
had acquired a domicile of choice in Guernsey, although her husband who had died some
weeks before her had domicile in England.

Even apart from statutory exception, the Supreme Court found in NarsimhaRao v
Venkatalaxmi, in a matrimonial dispute for divorce that by their marriage a woman domiciled
in India with a person, who was himself a bird of passage in Missourie, USA, could not be
said to have lost her domicile in India and be subjected to jurisdiction of the court in
Missourie. Interpreting domicile to mean permanent residence with intent to make it one’s
home, the continuance of the wife in India did not result in the change of her domicile and
found the situation to constitute one of the exceptions to the rule (of the wife’s domicile
following her husband upon marriage) which gives protection to woman and frees her from

11
Re Egerton’s Will Trusts, [1956] 2 All ER 817 .

10
the bondage of the tyrannical and servile rule that wife’s domicile follows that of her
husband. Lord Denning in Gray v Formosa, has criticised this rule and said the last barbarous
relic of wife’s servitude. In Adams v Adams, it was held that the rule is a completely
outmodeled legal concept.

The widow retains the domicile of her husband after his death, unless she has changed it after
his death.

The word “sentence” in section 16 means both a decree for divorce and a decree for judicial
separation and after a decree for divorce the wife may select her own domicile. But if the
parties live separately under a deed of separation, the exception will not apply.

Coupled with the question of the wife acquiring the domicile of her husband, is the question
also of nationality. If an Indian national marries a woman of different nationality, then her
domicile would follow the domicile of her husband, but in order to acquire citizenship of
India she would have to apply for registration of citizenship under the Citizenship Act.12

Under English Law

Under English common law, the domicile of a married woman was the same as and changed
with the domicile of her husband. This rule was considered as absolute admitting of no
exceptions, whatever are the circumstances. Historically it was based upon the ancient maxim
of the common law that husband and wife was one and the same person in the eye of the
law13. The above rule of unity of domicile of husband and wife had been subject to vigorous
criticism both academic writers and judges.

In case of Puttick v. A.G, the petitioner , a German national with a German domicile of origin
,was arrested in German and charged with a number of serious offence there, while on bail ,
she absconded and using an illegally obtained passport from German national, come to
England and married an English man in1975. The question before the court was whether she
had acquired an English domicile. It was held that rule of unity of domicile of husband and
wife had been abolished by the Domicile and Matrimonial proceedings Act,1973 and that ,
therefore she did not acquire a domicile in England. The court further held that she did not
and could not acquire a domicile of choice in England as she was staying England to avoid
trial in Germany and not to setup a permanent home the illegal entry and residence according
to the court, barred her from acquiring an English Domicile of choice.
12
See section 5 (1)(c), Citizenship Act, 1955.
13
Private international Law, Author-Paras Diwan, Publication- Deep &Deep, 4th Edition, p165.

11
But in India the now completely outmoded legal concept of the unity of domicile of the
husband and wife continues to be in force unaltered. Section 15 &16 of the Indian Succession
Act are based upon the old English rule. The common law countries earlier followed English
Common Law Rules. The rule that married women had the domicile of their husband has
however, been abolished in Australia, Canada, the Republic of Ireland, and New Zealand so
that in all these countries, a, married woman is treated as having an independent domicile like
any other person.

A woman who married before 1 January 1974, have her husband's domicile (as a domicile of
dependency). On 1 January 1974 the rules changed, so that women who married on or after
that date no longer take their husband's domicile; they retain their own domicile of origin and
can acquire their own domicile of choice. Women who were married before that date retained
their husband's domicile as at that date, but this is treated as a domicile of choice, not
dependency.

V. JUDICIAL INTERPRETATION THROUGH CASES

12
CONTROLLER OF ESTATE DUTY VS DR. (MRS.) MARY CHERIAN
CITATION: 1992 42 ITD 427 Coch
COURT: Income Tax Appellate Tribunal – Cochin
FACTS:
 Mary Cherian passed away on 16-10-1981. The Accountable Person at the
time of filing the statement of accounts stated that the deceased was domiciled
in Bahrain.
 In support of his claim the Accountable Person filed before the Assistant
Controller of Estate Duty a letter dated 16-9-1979 written by the deceased
from Bahrain to her husband wherein she has specifically and categorically
expressed her desire that she had decided to adopt the domicile of Bahrain and
settle down in Bahrain permanently.
 It was also stated that the change of domicile was also prompted by reason of
her terminal illness and the medical practice she had established.
 The claim of the Accountable Person was rejected by the learned Assistant
Controller of Estate Duty. Discussing the point in detail, the learned Assessing
Officer came to the conclusion that by virtue of Sections 15 and 16 of the
Indian Succession Act, the deceased cannot have any domicile other than the
domicile of her husband.

ARGUMENTS OF PLAINTIFF:

The fact that the deceased was an Indian Passport Holder and citizen of India and
because her husband was an Indian domicile and she has not acquired any
immovable property outside India cannot dislodge the claim of the Accountable
Person that the deceased had by choice became a domicile of Bahrain.

ARGUMENTS OF DEFENDANTS:

They contended that mere intention alone is not sufficient to say that the deceased
had acquired a domicile because as far as Bahrain is concerned normally that
Government does not give domicile status to a person, especially in her case
where the extension for the work permit is renewed year after year. 

RATIO DECIDENDI:

13
 Section 5 of Indian Succession Act regulates succession to deceased person's
immovable and movable property. This Section applies to the immovable property
in India of a deceased person. Wherever such person may have had his domicile at
the time of death, the succession to such properties shall be regulated by the law
of India. Succession to the movable property of a deceased person shall be
regulated by virtue of Section 5(2) by the law of the country in which such person
had the domicile at the time of death.

 Section 10 talks about the mode of acquisition of new domicile. Section 10 of the
Indian Succession Act speaks acquisition of domicile only about a "man". If the
Legislature had intended that a woman can also have that privilege it would have
used the word 'person' in Sections 15 & 16 also, as in Sections 5, 6 and 7. If
woman is discriminated as against 'man' in these sections, it is a matter to be
agitated before the Higher Forums and not before the Tribunal.

JUDGEMENT:

In the instant case of the assessee it is only a private letter written by the deceased
to her husband intimating her will to change the domicile. Of course the
genuineness of the letter is not disputed. But, the fact that she was a married lady
whose family was away in India and her relation with the family was cordial, is
indicative of the factor that the expression in the letter cannot be accepted in toto.
In our considered view, whatever be her personal choice it has no legal effect in
view of the clear provisions of Sections 15 & 16 of the Indian Succession Act.

CONTROLLER OF ESTATE-DUTY, MADRAS V DR. IDA BELLA SCUDDAR

CITATION: [1980] 123ITR 104.
FACTS:
 Dr. Ida B. Scuddar. She was born in the North Arcot District on the 19th
December, 1870. She comes from a family of medical men. Dr. John Scuddar,
her grandfather, was a successful New York doctor. But in 1819, a pamphlet
entitled "The claims of six hundred millions" fired his imagination. Closing
his shop almost overnight and packing his belongings, he sailed east towards
Ceylon with his family and then set foot on this soil, i.e., in this part of the
country.

14
  Dr. Ida Scuddar's father was working for some time in Tindivanam, after his
return to India as a qualified medical practitioner in or about 1861 to join the
Arcot Mission there, and thereafter went over to Vellore working in the same
Mission. The family was thereafter residing in Vellore and continued its
connection with the MissionDr. Ida Scuddar went away to the United States in
or about 1878 as a child of eight, for her education, and after graduating from
there, she returned to India at a time when her parents were at Tindivanam.
 In 1894, she returned to the United States for studying medicine and joined the
medical college in the States. After graduating in medicine, she returned to
India on the New Years day in 1900. While in the United States, she learned
that her denomination of the Mission had decided that there should be a
hospital for women in Vellore.
 During the period of her stay and service in India, she had acquired a 10 acre
plot at Kodaikanal and retired to it on the 19th of August, 1946. The place is
known as Hill Top. She used to make periodical visits to Vellore, even after
retirement, till she died on 24th May, 1960.
ARGUMENTS OF PLAINTIFF:
Dr. Ida Scuddar had foreign domicile was that the domicile of origin must prevail.
This is only a rule of presumption. The onus of proof is on the person
propounding the theory that the domicile of origin has been displaced by the
domicile of choice. Until the domicile of choice is established, the domicile of
origin would continue. 
ARGUMENTS OF DEFENDANTS:
She had spent all her life, energy and resources in founding and building up this
institution. She had no other interest in life. There is absolutely nothing by way of
any material to show that she considered India to be only a temporary place of
stay for eking out a livelihood or completing a fixed project, and that she wanted
to go back to the United States at some point of time or other, and live in comfort
and die there.
RATIO DECIDENDI:
Originally she appeared to have an idea of marrying and quietly settling down in
life. But that was abandoned at a very early age when, after her studies she came
over to India, and found a crying need for women doctors and a well-equipped

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 hospital. Her will also was executed in India. The facts here are eloquent to show
that she could not have had any idea of going back to the United States, and that
she literally lived in the country of her adoption and died in it. The goal set by her
for herself, on the example of her parents and grandparents, was to be of service to
the distressed and the afflicted in India. There could have been no attraction for
one like her to a land of affluence and plenty like the United States. The facts are
thus clear to show that the presumption in favour of the domicile of origin is
displaced, and that her domicile of choice was India where she had her home and
which was the centre of her activities. The second reason given by the Tribunal in
support of its conclusion is based on a passage in the will which is erroneously
referred to by it as codicil. 
JUDGEMENT:
The events in her life which are described in detail in the biographies and
literature about her would go to show that the establishment of the hospital was
not the purpose for which she came to India. She came to India to meet her
parents initially, after she was away from them for her educational purposes for a
fairly long period of not less than 8 years. She did not have any idea of taking up
medical education and was only assisting her parents for a period of nearly four y
ears until she found that there was a great need for women doctors. The social
conditions in this part of the country required her to take up this mission as part of
her aim in life. from the publications about her and which were spared by counsel
for the accountable person, it would indeed be an error to draw an inference that
she came to India with a special purpose of only founding the institution, and that
she continued in India without any intention of making it her permanent home. 
NEHA SAINI VERSUS STATE OF UTTARAKHAND & ANOTHER LNIND
CITATION: 2009 UTTAR 53
FACTS:
 The petitioner is a member of an Other Backward Class, community, namely
"Saini". This community is notified as an OBC in the State of Uttarakhand,
and there is no dispute regarding this fact.
 However, petitioner has now married a person outside her caste, who is of a
high caste who is also a permanent resident of a different State i.e. of Purnia,
which is in the State of Bihar. The two, presently reside in Delhi.

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 Petitioner has a diploma in Russian language from Jawahar Lal Nehru
University, Delhi and in pursuance to an advertisement issued by the Union
Public Service Commission has applied for a job, which requires proficiency
in Russian Language. Some of the posts on which the appointment has to be
made are reserved for OBC candidates.
 Now, the husband of the petitioner is not an OBC, moreover, the State in
which the husband of the petitioner claims a "permanent residence" has also
not notified "Saini" as an OBC caste.
 The petitioner, therefore applied for this OBC certificate in the State of
Uttarakhand, where she was born, brought up and had done most of her
education. This was denied to the petitioner as the Tehsildar Roorkee (district
Haridwar, Uttarakhand) has given a "noting" in the application of the
petitioner that the petitioner has now married and resides in a different State
and therefore, he cannot give such a certificate to the petitioner. Aggrieved, the
petitioner has filed present writ petition
ARGUMENTS OF PLAINTIFF:
The petitioner argued that she being born in the state of Uttarakhand, her parents
residing there, she completed most of her education there is entitled to be granted
a certificate by the Uttarakhand state. This is because most of her life and
permanent residence is at that place.
ARGUMENTS OF DEFENDANT:
Petitioner has not only married outside her caste i.e. to a person, who is of higher
caste, who is not an OBC, but also since the petitioner's husband belongs to
another State i.e. the State of Bihar, the OBC certificate cannot be now granted to
the petitioner from Roorkee in the State of Uttarakhand.
RATIO DECIDENDI:
The Respondents rely upon S.15 and S.16 of (the Indian) Succession Act.
domicile', it must be clearly understood first that the merely because the petitioner
is married into a higher caste, she will not seize to be a member of an OBC. She
has married into a "family", and not into a 'community', and therefore she will not
loose her claim on 'reservations, which are available to a member of an OBC
community.

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domicile denotes an area with a separate and distinctive legal system and not just a
particular place in a country. The concept of regional or provincial domicile is
alien to Indian legal system. The difference in personal laws in India is not
regional based but religion or community based and a "Muslim" or a "Hindu" will
be governed by a single system of personal laws whether he resides in Tamil Nadu
or in Uttar Pradesh.
"Now it is clear on a reading of the Constitution that it recognizes only
one domicile, namely, domicile in India. , Art.5 of the Constitution is clear and
explicit on this point and it refers only to one domicile, namely, "domicile in the
territory of India." 
JUDGEMENT:
Consequently, the denial of caste certificate to the petitioner by the authorities in
Uttarakhand is based on a misconception of the term 'domicile'. Petitioner was
never a domicile of Uttarakhand, U.P. or Bihar, or for that matter of any one
province. She was, and continues to be a domicile of India, as there is nothing like
a "domicile of Uttarakhand" or a "domicile of Bihar" or of any other State. It is
emphasised, even at the cost of repetition, that in India each citizen has only
one domicile, which is the "domicile of India". Thus, the denial of caste certificate
to the petitioner by the State authorities in Uttarakhand on the ground that she is
presently a domicile of the State of Bihar and not of Uttarakhand is clearly wrong,
in fact misconceived. The petitioner always had and presently possesses
a domicile, which is called the "domicile of India".
Reliance upon S.15 and S.16 of the Succession Act in the present context is also
misplaced. State authorities including Tehsildar Roorkee are hereby directed to
issue a caste certificate pertaining to "Saini" community to the petitioner. 

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 VI. CONCLUSION

There has been a lot of hue and cry and complex confusions in the meaning of the terms
Domicile, Nationality and citizenship while studying either Private International Law or
Public International Law. The term nationality signifies the politico-legal status of an
individual belonging to a particular state while the term citizenship is often used in municipal
law. Generally, the national who enjoys full political and civil rights is called a citizen.
Domicile, on the other hand, is an attribute of nationality and denotes a persons place of
residence and it is the relationship between the individual and locality, where that person has
his permanent home. Therefore, it is quite possible that a person may be national of one State
while domiciled in another state and resolving the complexities of these terms mitigate
almost half of the international issues by providing the appropriate forum to deal with
specific nature of the issue. The law of domicile in India is crystal clear and is free from any
ambiguities. The same is important for resolving the “conflict of laws” in India. There seems
to be an ignorance of the concept in its true perspective in India. There is an urgent need to
spread “public awareness” in this regard. Particularly in India there is lack of provisions with
regarding to domicile. Decided cases are based on English laws only. But English laws and
Indian laws both are similar to each other.

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REFERENCES:
Books:

1. Cases and materials on Private International Law, Author – J.H.C Morris.

2. Conflict of Laws, Atul M Setalvad, Lexis Nexis Butterworths Wadhwa, Nagpur, 1st
Edition,Reprint 2011, Page 342.
3. Principles of Conflict of law, Author-George Wilfred Stumbees , 2nd Edition.
4. The Conflict of Laws, Author- David mc clean, 4th Edition.

List of Act:

1. Domicile and Matrimonial Proceeding Act,1973

2. Hindu Marriage Act,1955

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