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Petitioner: JOAN MARY CARTER VS Respondent: ALBERT WILLIAM CARTER
P L D 1956 (W
P L D 1956 (W. P.) Lahore 412
Before Akhlaque Hussain, J
JOAN MARY CARTER‑Appellant
Versus
ALBERT WILLIAM CARTER‑Respondent
First Appeal No. 34 of 1955, decided on 9th January 1956, from the order of Bashir‑ud‑Din Ahmad, District Judge, Rawalpindi, dated the 20th April 1955.
Domicile‑Animus to return‑Mere assertion of a wish not enough‑"Domicile" in Divorce Act (1V of 1869) and Succession Act (XXXIX of 1925)‑Domicile of choice‑Change of domi cile‑Domicile different from citizenship‑Onus to prove respon dent's domicile on petitioner in divorce case‑Presumption from long residence‑Opting for service in Pakistan on Partition‑‑ Domicile presumed changed to Pakistan.
Held, intention or animus to return to one's domicile of origin is an important fact in determining domicile but it is a mistake to think that the mere assertion of the contending party that he wishes, even if it is a genuine wish, to return to the country of one's grandfather's origin is, by itself, suffi cient to prove that the party retains his domicile of origin.
The word "domicile" is defined neither in the Divorce Act nor in the Succession Act, but there are certain rules set out in Part 2 of the Succession Act which cannot be ignored in determining the meaning of the expression under the Divorce Act.
According to section 10 of the Succession Act, "a male acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin".
There are thus two elements necessary for the acquisition of a domicile of choice, namely, (1) residence, and (2) an intention to reside permanently or indefinitely.
Indeed the fact that a person resides in a country is prima facie evidence that he is domiciled there mere, intention to change one's domicile without actual change of residence is wholly ineffective.
Domicile is different from citizenship and can be changed only by the change of intention as well as residence.
The onus to prove the respondent's desire to continue residence for an indefinite period is, however, on the petitioner.
The respondent's father, grandfather, their wives and their children were all permanent residents in India throughout their lives. None of them ever went to England. His own younger brother lived in India and died in Karachi. His father had a house and business in this sub‑continent
Held, that the long continued residence of the respondent and his forefathers and relations in this country raised a fair and strong presumption that on attainment of majority he had decided to live in India indefinitely.
If his domicile was Indian before the Partition, it was clearly changed by him after that event when he opted for service in Pakistan.
The respondent's present domicile therefore was Pakistan.
Fopp v. Wood (1865) 4 De. Ge. J. & S. 616, Hedgson v. Beauchesne (1858) 12 Moo P. C. 286, Gulbenkian v. Gulbenkian (1937) (4) All E. R. 618 at 627 Moor‑house v. Lord (1863) 10 H L C 272 at 285, Bruce v. Bruce (1790) 2 B & P p. 231, Bempde v. Jhonstone (1796) 3 Ves. Jun. p. 201, Stanley v. Bernes (1830) 3 Bagg. I cc. 373, Hodgson v. De Beauchatne (185d) 12 Moo P C 287 p. 329 and Ross v. Ross (1930) A C 1 p. 6 ref.
Fazl‑i‑Ghani, for Appellant.
Norman Edmunds for Respondent.
JUDGMENT
AKHLAQUE HUSSAIN, J.‑--This appeal arises out of a petition under section 10 of the Divorce Act made by the appellant Joan Mary Carter to the District Judge, Rawalpindi, on the 11th of November 1954, for dissolution of her marriage with the respondent Albert William Carter. The respondent took an objection to the jurisdiction of the Court on the ground that the parties were citizens of the United Kingdom and were neither domiciled in, nor citizens of, the Dominion of Pakistan. A preliminary issue regarding the jurisdiction of the Court was framed. The learned District judge after recording the evidence of the parties, decided the issue against the petitioner‑appellant and by his order dated the 20th of April 1955, dismissed the petition. The petitioner has appeal ed to this Court against that order.
Admittedly the grandfather of the respondent James Carter, who was born in Parish of Hanwell. Middlesex, England, had come out to India some time after 1857 and had died there. His son William Fredrick Carter, father of the present respondent, was born in India in 1874 and has all along lived there. He is still alive and is living in Bangalore in the Republic of India. The respondent joined the service in the North West Railway on the 27th of April 1922, and has since then all along lived in that part of the sub‑continent which is now known as the Province of West Pakistan. He married the appellant in Rawalpindi on the 21st of June 1948. On these facts and the fact that the appellant says that . . . . he has . . . . still . . . the intention to return to England", the learned District judge held that the appellant has retained the domicile of the origin of his grandfather, which, according to the learned judge, was English. The conclusion of the learned judge is based upon a somewhat cursory and superficial appreciation of the facts and the principles of law applicable. It is true that intention or animus is an important fact to be considered, but it is a mistake to think that the mere assertion of the contending party that he wishes, or even a genuine wish, to return to the country of one's grandfather's origin is, by itself, sufficient to satisfy the requirement of the law.
By section 2 of the Divorce Act, Courts in this country have the jurisdiction to make decrees of dissolution of marriage only where the parties to the marriage are domiciled in Pakistan at the time of the presentation of the petition. The expression "domicile" is not defined by the Act. Part 2 of the Succession Act, however, lays down certain rules regard ing domicile without defining that expression. As these rules are general in their character and are consistent with the meaning of the expression "domicile" as understood in Private International Law, and the meaning assigned to it by the decisions of the English Courts, there would appear to be no justification, either in principle or in reason, to exclude them from consideration in determining the meaning of "domicile" under the Divorce Act. In this case it is admitted that the original domicile of James Carter was English. The main question to be decided is whether at any time James Carter or his son, W. F. Carter, or his grandson, the present respondent, ever acquired a new domicile in the country in which, they resided. According to section 10 of the Succession Act, a male acquires a new domicile by taking up his fixed C habitation in a country which is not that of his domicile of origin". This is quite consistent with Rule 7 at gage 89 of Dicey's Conflict of Laws, 6th Edition, which runs as follows:‑
Every independent person can acquire a domicile of choice, by the combination of residence (factum), and intention of permanent or indefinite residence (animus menendi) but not otherwise".
There are thus two elements necessary for the acquisition of a domicile of choice, namely, (i) residence, and (ii) an intention to reside permanently or indefinitely. The element of intention is on the face of it implicit in the rule laid down in section 10 wherein the expression "fixed habitation" connotes practically the same thing as the expression "permanent or indefinite residence" denotes in English Law. Long residence by itself does not necessarily cause the acquisition of domicile. Fopp v. Wood ((1865) 4 De. Ge. J & S 616). On the other hand, residence for a very brief period may in a particular case produce a change of domicile. Hedgson v. Beauchesne ((1858) 12 Moo P C 286). Everything depends upon the intention attending the residence which has to be determined by a careful examination and analysis of particular circumstances of each case. "The intention must be a present intention to reside permanently, but it does not mean that such an intention must necessarily be irrevocable. It must be an intention unlimited in period, but not irrevocable in charac ter". Gulbenkian v. Gulbenkian ((1937) 4 All E. R. 618).
With these preliminary remarks regarding the relevant principles applicable, I now proceed to examine their bearing on the facts of this case.
One Francis Carrick, who was born at St. Luke's, Middle sex, England, enlisted at Westminster as a Gunner in the 3rd Battalion Madras Artillery, on the 21st of September 1833, at the age of 20, and left with the British Forces for Madras on the 12th of May 1835. He was thus born some time about 1813. On the 27th of May 1840, he was married to one Maria Moulds in St. Thomas's Church at St. Thomas's Mound, Madras. This lady is described as a widow and an Indo- Britain. I take it that the expression "Indo‑Britain" means that both of her parents had not come from England, and that at the time of her birth they were settled in India. Francis Carrick had a daughter, Matilda Carrick, from this marriage, and he died in India on the 13th of December 1865.
James Carter, the grandfather of the respondent, joined the Royal Regiment of Artillery on the 30th of December 1857 at the age of 18, and came out to India. On the 19th of April 1865, he married the above‑mentioned Matilda Carrick; about eight months before the death of the latter's father Francis Carrick. Matilda's marriage, like that of her parents, was performed in St. Thomas's Church at St. Thomas's Mound, Madras. James Carter was discharged from the Army in 1879 either "in consequence of his having claimed it or termination of second period of limited engagement". The papers for his discharge were signed at Secundurabad on the 31st of January 1879 and his discharge was confirmed by the War Office in London on the 29th of April 1879. The actual discharge appears to have taken place at Secundurabad on the 11th of August 1879. At that time he had two children; a daughter, Leslie Matild, about 12 years of age, and a son, William Francis, between four or five. After discharge the Carters stayed on in India and in the Parchment Certificate the "Extended Place of Residence" is mentioned as "Madras, East India". James Carter died in India; although the year of his death is not known. Neither his widow nor any of his children appear to have ever gone to England. Nothing further is known of Matilda Carter or Leslie Matlid Carter. The history of the family makes it fairly certain that they lived in India throughout their lives. Had it been otherwise the res pondent, or his father William Francis who has supported his son's defence in this case with partisan spirit, would have at any rate alleged it. The first question which falls to be decided in this case is what was the domicile of James Carter at the time of his death; had he retained the domicile of his origin which was English or had he acquired a domicile of choice namely, Indian?
Learned counsel for the respondent contended, with reference to the Explanation to section 10 of the Succession Act and certain rulings, that it cannot be inferred from James Carter's residence in India, which was due to his being in Her Majesty's Military Service, that he intended to abandon, and did in fact abandon, his domicile of origin. That proposition, as far as it goes, is indisputable; but in this case it is the continued residence of James Carter after his retirement from the Army which is under consideration and to which the law and authorities relied on by the leafed counsel are wholly inapplicable. The Explanation to section 10 of the Succession Act runs as follows:‑
"Explanation.‑A man is not to be deemed to have taken up his fixed habitation in the Provinces and the Capital of the Federation (originally 'British India') merely by reason of his residing there in His Majesty's civil, military, naval or air‑force service, or in the exercise of any profession or calling."
It will be observed that residence on account of service in His Majesty's military does not prevent a person from acquiring a new domicile; it only forbids the raising of a presumption, which might otherwise be permissible‑because residence is one of the two ingredients of domicile‑that such a change had been intended. In this case, there is no evidence to show that James Carter in spite of his military service intended to change his domicile while he was in the Army. The onus being on the petitioner‑appellant to prove this, it must be held that James Carter continued to retain his English domicile for so long as he was in that service; but after his discharge from that service the rule would cease to operate. Thereafter his residence in India can be taken into consider ation in determining whether he intended to change his domicile of origin or not. The initial presumption of course would be in favour of the continuation of his original domicile but it may be displaced by evidence or proved circumstances showing a contrary intention on his part.
In order to show the real nature of James Carter's residence in India after his discharge from the Army, reliance was placed on behalf of the respondent, on the following averment in the affidavit of the respondent's father, W. F. Carter, which was sent from India:‑
"My father was James Carter, who was born in the Parish of Hanwell in County Middlesex in England and enlisted in the Royal Artillery and was still serving in that British Regiment at the date of my birth and always intended to go back to England but soon after his discharge from the Army he suddenly died of heart failure . . . . . ."
The deponent was not available for cross‑examination and he has not given‑and I am convinced deliberately‑the date or the year of his father's death and has suppressed that fact by using the convenient and vague expression "soon after". As I have already remarked above, and shall show presently, the deponent has tried to side with his son by suppressing important facts and by minimizing or exaggerating the effect of others: and therefore much reliance cannot be placed upon his allegations favouring the cause of his son. The above passage from his affidavit clearly gives the impression and it was intended to produce that impression‑that his father James Carter could not go to England because "he suddenly died of heart failure". This is obviously false for, as I have already shown, James Carter deliberately chose to stay on in India after his discharge. The Parchment Certificate does not show that he was discharged in India, instead of England, because "he suddenly died of heart failure". The question is what was the effect, on his domicile of origin, of James Carter's continued residence in India after his discharge from the Army. Learned counsel for the respondent contended that according to the certificate, Madras was only the "extended place" of residence. It is not possible to definitely fix the meaning of that expression in the Parchment Certificate. One thing, however, is clear that it is not extended period of residence which is obviously different from "extended place of residence". The latter expression seems to clearly connote the intention to extend the residence after retirement and the question which falls for determination is whether this residence was intended to be of a definite or of indefinite duration. This question can be resolved with a fair amount of certainty by considering the consequences of the choice made by James Carter. I have deliberately used the word "choice" for undoubtedly it was a deliberate choice on the part of James Carter. If the intention was to continue residence in India for an indefinite period, he must be held to have acquired a new domicile of choice.
As regards persons recruited in England for the Army it was obviously the moral duty‑and it must also have been the legal duty‑of the British Government to have brought them back to their homes in England after the completion of their service abroad. Mr. Norman Edmunds referred me to the Army Discipline and Regulation Act, 1879 (42 and 43 Victoria. Chapter 32) which lays down that if a soldier serving abroad refuses to go home on the completion of his service he shall lose his right to free passage to England. It was argued that since this Act came into effect only on the 24th of July 1879 and the English mail in those days took a long time in reaching, India the Act would not be known in Secundurabad on the 11th of August 1879 when Carter was discharged, and, there fore, this provision would be inapplicable in his case. The provision, however, could not have been a new one because it is obviously unreasonable for a soldier to claim his discharge abroad and to claim a free passage to his home at his sweet will years afterwards. Sections 4 and 5 of 30 and 31 Victoria, Chapter 34 of 1867 bear this out.
"Section 4. Any Soldier whose Period of Enlistment or of total Service shall expire while he is serving on any Foreign, Colonial, or Indian Station may be detained, and his Service may be prolonged, for such further Period as shall be directed by the Commanding Officer at the Station there, not exceeding Twelve Months; but at the Expiration of such prolonged Service, or sooner, if the said Commanding Officer shall see fit, the Soldier shall, unless he desires to remain there, be sent home at the Public Charge as in the Case of Soldiers invalided, with all convenient Speed, and after his Arrival he shall be discharged.
Section 5. If any such Soldier being in any of Her Majesty's colonies or possessions abroad desires to remain and to claim his Discharge there, he shall, if such be his Desire, give Notice thereof to the Governor through the Commanding Officer, whereupon it shall be lawful for such Governor, if he sees fit, with the Consent of the Com manding Officer, to permit such Soldier to remain in, such Colony as a discharged Soldier, and such Soldier shall have no Claim thereafter to be conveyed to his Home in the United Kingdom or elsewhere".
It will be seen that a soldier serving abroad had two options, namely, either to claim his discharge abroad "if he desired to remain there" or to be brought back home at Government expense and to be discharged there. James Carter claimed and got his discharge at Secundurabad. By doing so he lost the valuable right of going back home at public expense, and in the circumstances of this case must be deemed to have thereby burnt his boats behind. That the free return passage to England must have meant considerably to his pocket is obvious from the fact that he retired from the Army only as a Trumpet Major. He had married twice and both times in India. His second wife was the daughter of another British Soldier who had married an "Indo‑Britain". Having established family contacts with people who were living in India and then, on retirement; having chosen to forego the right of being sent back home free of cost, he must be presumed to have decided to have his fix abode or permanent home in India. He had the motive as well as the intention to become domiciled in India. It is significant that although he was discharged at Secundurabad he gave Madras as the place where he intended to reside thereafter. Madras was the place where he himself was married and where his wife's parents had been married and had apparently their home there. These facts clearly show that like so many other British Soldiers in the early days of British rule, James Carter did intend to become domiciled in India. He may or may not have intended this before his discharge, but there is no doubt about his intention after that. I, therefore, hold that James Carter acquired an Indian domicile on or before the 31st of January 1879 when he asked for his discharge in India instead of England and that he never altered that domicile until his death.
In arriving at this conclusion I have not been oblivious of the tendency on the part of English judges in recent times to take an over‑rigorous and unduly severe view of the intention to change one's domicile. In Moorhouse v. Lord ((1863) 10 H L C 272 at 285) Lord Chelmsford expressed himself thus:‑
"The present intention of making a place a person's permanent home can exist only where he has no other idea than to continue there, without looking forward to any event, certain or uncertain, which might induce him to change his residence."
This passage‑although on a minute and careful analysis it would appear to be unexceptionable‑at first sight gives the impression that the intention to reside permanently must be absolute, unqualified and irrevocable. That this is not so is clear from the following observations in the comparatively recent cases of Gulbenkian v. Gulbenkian ((1937) 4 All. E. R. 618 at 627).
"The intention must be a present intention to reside permanently, but it does not mean that such intention must necessarily be irrevocable. It must be an intention A unlimited in period, but not irrevocable in character."
The change of domicile depends, apart from residence, upon the intention to reside for an indefinite or unlimited A period. Once a person residing at a place other than that of H his domicile of origin has formed that intention, it is immaterial whether later on, or even at the time of forming that intention, he has an "idea" or contemplates the possibility, that at some distant and uncertain future he may again change his domicile. Although quite distinct from intention residence is prima facie one of the circumstances from which the intention to reside permanently can be gathered. Indeed it has been laid down that the fact that a person resides in a E country is prima facie evidence that he is domiciled there. Bruce v. Bruce ((1790) 2 B & P at 231); Bempde v. Johnstone ((1796) 3,Ves. Jun. at 201 ). It may be so long and so continuous that mere declarations of a contrary intention would be insufficient to rebut the presumption. Stanley v. Bernes ((1830) 3 Bagg. I cc 373); Hodgson v. De Beauchesne ((1858) 12 Moo. P C 286 at 329). The question whether the requisite intention is proved depend upon the particular circumstances of each case; but there is no warrant either in principle or in commonsense for reluctance to arrive at that finding in face of evidence clearly pointing to that conclusion. I have carefully examined a large number of English cases and find that the tendency mentioned by me is displayed far more, if not exclusively, in obiter dicta and observations of certain learned judges than in the actual rulings or decisions. In practically every case the actual finding accords with the true nature of the proof. I am convinced that in view of the circumstances under which James Carter decided to continue his residence in India after being discharged from the Army, it is overwhelmingly probable that violence would be done to his real and actual intention by holding that he did not intend to become domiciled in India. In the absence of any circumstance showing a contrary inclination or intention, the conclusion at which I have arrived is rationally inescapable.
Since W. F. Carter was a minor both at the time of the discharge and the death of his father, his domicile too must also be considered to be Indian until he became major at the age of 18, according to the Indian Majority Act, when it was open to him to have discarded his Indian domicile and reverted to the domicile of the origin of his father. Whether he did so or not is the next question which has to be considered in this appeal. It is settled law that mere intention to change one's domicile without actual change of residence is wholly ineffective. Therefore since the respondent's father never went to England he cannot be held to have ever reverted to the domicile of origin of his father or abandoned his Indian domicile. Similarly the respondent also has retained the domicile which was conferred upon him at the time of his birth, and during his minority, by his father. The mere fact, even if true, that he and his father have always been pining for the "home" of their forefathers can be of no avail to them. Nor is their registration as British citizens or of being of English domicile of any relevance to the present enquiry. Domicile is different from citizenship and can be changed only by the change of intention as well as residence.
I have said that W. F. Carter was born on the 25th of September 1874. He joined the R. M. Railway Service as an Engine Driver and was married to Mildred Emma King‑ again a resident in India‑on the 22nd of December 1903. We do not know his date of retirement but we have it from his affidavit on the record that after his retirement he started a billiard saloon in Bangalore where he is now residing at the ripe old age of 81. He has asserted in his affidavit:‑
" I have always regarded myself as belonging to and domiciled in England and my name was always entered in.the railway records as of…
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