Explain the domicile of married women in India?

The Indian statutory law does not follow English law. The Indian Succession Act, 1925, Sections 15 & 16
incorporated the general rule: on marriage the wife acquires the domicile of her husband and during
covertures her domicile is the domicile of her husband. Then it is laid down that wife can acquire her
own domicile in the following two cases:

(1) If the wife is living separate under a decree of the court, or (2) If the husband is undergoing a life
sentence.

In Prem Pratap v. Jagat Pratap, 1944 All 97, a German domiciled woman married an Indian man and set
up a matrimonial home in India. After some time the husband left the wife. The

wife filed a suit for maintenance in an Indian Court-the main defence of the husband was that an
abandonment of the wife by him, the wife's pre-marriage domicile had revived and, therefore, the
Indian Court has no jurisdiction to entertain the petition. Rejecting this plea, the court observed that
during couerture the domicile of wife remains that of husband.

In Rani Saeeda Khatun v. State of Bihar, 1951 Pat 454, soon after the partition one Rani Saeeda Khatun,
wife of Captain Kumar Gopal Narayan Singh, domiciled in India, left with her mother for Pakistan. On
14th May 1950 she visited India on a permit issued by the Indian High Commission for Pakistan. On 23rd
July 1950 she was served with a notice of Government of India to quit India. In a petition for a writ of
mandamus it was argued on behalf of Rani Saeeda Khatun that she being a wife on Indian domiciled
person, was domiciled in India and, therefore, cannot be asked to quit India. Since by going to another
country or by any other act of her she could not, during the subsistence of marriage, acquire any
domicile of her own choice. Her plea was accepted by the Patna High Court. Substantially on similar
facts the Allahabad High Court also accepted Mallick, referring to Section 16, Indian Succession Act,
1925 said that during the subsistence of couerture the domicile of wife is the domicile of her husband
(Smt. Allahabadi v. Union of India, 1954 All 457).

Distinguish between domicile and nationality ?

Domicile and Nationality

A domicile is different from nationality. “Nationality is the political status confirmed by the State on an
individual or nationality is membership of a nation or sovereign state, usually determined by the
citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national
identity. Citizenship is determined by jus soli, jus sanguinis or naturalization. But domicile is generally
the result of the choice and intention of an individual. One of the greatest obstacles in the way of
unification of the rules of Private International Law is that the two main legal system of the world adopt
different connecting factors in the field of personal law. Both the legal system claim certain merits for
the connecting factor they adopt. The argument in favour of nationality that it is a definite and certain as
acquisition or loss of nationality does not depend merely on the intention of a person might not be quite
often, clearly ascertainable. On the other hand, the advantage of domicile is that generally, a person has
a free choice to acquire it and therefore he might choose a system of law under which he is to live.
Further in the case of nationality, due to lack of uniformity in law of nationality or for other reasons,
there may be cases of statelessness or cases of double nationality. In either of those cases there may not
be a law or there may be more than one law to govern a person but in the case of domicile as there
cannot be more than one operative domicile and as no person can be without a domicile such problem
do not arise.

Therefore, we must always bear in mind that a person can never have his "domicile" in two or more
places. Of necessity, his domicile is in the place where he has voluntarily fixed a habitation for himself
and his family and not for a special or temporary purposes, but with the present intention of making it
his permanent home.

Distinguish between domicile and residence ?

Domicile and Residence

As domicile is different from nationality it is also different from residence. It is true that “domicile of
choice” may be dependent on residence in certain circumstances but, residence and domicile need not
necessarily coincide. Domicile is a much wider concept. It may be in certain cases a creation of law and
in certain other cases, it may be the outcome of several factors although based on residence. Let us bear
in mind that residence s habitual physical presence in a place during a period of either limited or
unlimited duration. A person may be a national of one state, domiciled in another and residence in a
third. Residence may be relevant for certain legal purposes like the purpose of jurisdiction, taxation etc.
But "domicile" is the factor, which determines the civil status of a person and connects him to a system
of law.

Theories of Recognition of Foreign Judgments

Following theories have been advocated to justify the recognition and enforcement of foreign
judgments.

(i) Theory of Comity

It is one of the oldest theory of recognition of foreign judgment. According to Black's Law Dictionary, the
term 'Comity' means, reciprocity, courtesy, compliance, respect, a willingness to grant a privilege, not as
a matter of right, but one of defence and goodwill. Thus, the underlying idea of this theory is that Courts
of one sovereign should recognise judgments of another sovereign, on the basis of reciprocity. Comity is
not a rule, but one of practice, convenience and expediency.

(ii) Theory of Obligation

Theory of obligation provides that where a foreign court of competent jurisdiction has adjudicated a
certain sum of money to

be due from person to another, then liability to pay that sum becomes a legal obligation which may be
enforced in any country by an action of debt. Thus, this theory eliminates the question of reciprocity.
This theory is criticized on the ground that it brings a fictitious contract into play and cannot justify the
recognition of divorce decrees and other judgments in rem i.e. it fails to explain the recognition of
foreign judgments.

(iii) Theory of Justice

This theory was propounded by H.E. Reads, whose view was that every judgment of competent court
should be recognised in the interest of justice. This theory is criticized on the ground that, this theory
cannot be accepted practically because this will involve examination of vast number of cases, which is
impractical.

Jurisdiction to Foreign Courts

The following circumstances would give jurisdiction to Foreign Courts:

1. Where the person is a subject of the foreign country in which the judgment has been obtained.
2. Where he was a resident in the foreign country when the action was commenced and the summon
was served on him.

3. Where the person in the character of plaintiff selects the foreign court as the forum for taking action
in which forum he issued later.

4. Where the party on summons voluntarily appeared, and

5. Where by an agreement, a person has contracted to submit Jos himself to the forum in which the
judgment is obtained.

Foreign Judgments when not Binding: Circumstances: Section 13

Under Section 13 of the Code (CPC), a foreign judgment is conclusive and will operate as res judicata
between the parties thereto except in the cases mentioned therein. In other words, a foreign judgment
is not conclusive as to any matter directly adjudicated upon, if one of the conditions specified in clauses
(a) to (f) of Section 13 is satisfied and it will then be open to a collateral attack.

In the following six cases, a foreign judgment shall not be conclusive:

(1) Foreign judgment not by a competent court.

(2) Foreign judgment not on merits.

(3) Foreign judgment against International or Indian law.

(4) Foreign judgment opposed to natural justice.

(5) Foreign judgment obtained by fraud. (6) Foreign judgment founded on a breach of Indian law.
(1) Foreign judgment not by a competent court

It is a fundamental principle of law that the judgment or order passed by the court, which has no
jurisdiction, is null and void. Thus, a judgment of a foreign court to be conclusive between the