Dhriti Mitra and Pranay Tuteja, both, students of Symbiosis Law School, Pune explains the lacunae in law regarding the Domicile status of Widows in India and the problems they face concerning their right to inherit immovable property.

Introduction

There lies a deep fallacy in the layman’s understanding of the term domicile. The Indian courts have defined the term as the place where the habitation of a person is fixed without any present intention of removing therefrom[1] A mere sojourn or temporary residence does not constitute domicile; it signifies an association with a single system of territorial law which may not dictate the same principles for all classes of persons. The general rules pertaining to domicile are, (i) nobody is without domicile, (ii) a person cannot have two domiciles, and (iii) there is a presumption in favor of the continuance of an existing domicile.[2]

The classes of domicile recognized by the Indian constitution and the Indian Succession Act, 1925, are (i) Domicile of origin; (ii) Domicile of choice, and (iii) Domicile by operation of law.  The two crucial aspects that need to be fulfilled for the acquisition of a domicile of choice are; factum and animus. Factum represents the physical presence as an inhabitant of a particular place. Whereas the concept of animus manendi focuses on the intention to remain in a particular place for an unlimited period of time. The existence of a motive is immaterial unless it helps shed light on the intention of the person with respect to their residence.[3] 

Current Position in Law

The Apex Court has interpreted Article 5 of the Indian Constitution[4] to suggest that the right to change the domicile of birth is available to any individual who is legally independent. The same can also be acquired by residing in the country of choice with the intention of continuing to reside there indefinitely. However, unless proven otherwise, there is a presumption against the change of domicile. Hence, the person who alleges it has to prove so in a court of law.

Additionally, the courts have held that the intention of continuing to reside, is always lodged in the mind. This intention can be inferred from any act, event, or circumstance in the life of such a person. Further, a residence for a long time period in a particular place is considered evidence of such intention, which helps determine domicile.[5]

As per the Indian Succession Act, 1925, a married woman acquires the domicile of her husband and retains the same during her marriage.  The only exception to this is when a woman no longer follows her husband’s domicile because they have been separated by the sentence of a competent court or if the husband is undergoing a sentence of transportation.[6] However, the law maintains absolute silence on the domicile status of a widow and her right to inherit immovable property. 

The 110th Law commission report of India addresses the issue of domiciled widows at length.[7] As per the report, the provisions of the Indian Succession Act, 1925, are founded on the principle that the wife has a duty to live under her spouse’s domicile, and the law disables her to choose her own domicile after the death of her husband. The report proposes the addition of Section 16-A to the Act that would address the predicament of the widows if the present scheme of sections 15 and 16 was to be retained.  

The lacuna in the Law

A large number of widows in India are deprived of their inheritance rights, especially in cases where she is either childless or has given birth to a daughter. Her husband’s familial lineage is considered to be the domicile of the widow. This has proven to be a major contributor to poverty and marginalization for them as it denies them access to not only their inheritance but also other economic benefits. For example, a widow had been physically and mentally tortured by her brother in law in order to gain control over the inherited property.[8]

The Indian law does not have a provision which specifically clarifies the fate of an Indian widow’s domicile after the death of her husband. However, the Indian courts have observed that even on the death of the husband, a widow retains her husband’s domicile. But she cannot change it by choice unless it is by an act of marrying someone else.[9]

The legal rigidity of the widow’s fixed domicile post her husband’s death is directly violative of Article 14 of the Indian Constitution.[10] If every other citizen is allowed a right to choose their domicile status, there is certainly no form of reasonable classification in not allowing the same to widows. Further, it is also violative of Article 300A of the Constitution[11], as a widow cannot be denied access to the property, even when she has a legitimate claim of inheritance in other territories.  

In a situation where the husband’s domicile is proved to be in a foreign country[12], the wife retains the foreign domicile of her husband after his death. India did away with the concept of inheritance tax in 1985 with the abolition of the Estate Duty Act. But certain countries like the UK, continue to charge an inheritance tax up to 40%.[13] The payment of inheritance tax in the UK is dependent on whether a person is domiciled there at the time of his death. If his domicile is proved to be the UK, then his successors will have to pay the tax.[14] The major cause of concern arises when a widow is forced to pay such a hefty sum of money due to the lack of an option to choose her own domicile.

A Global Perspective

The old common-law rule regarding the domicile status of women stated that the domicile of the wife is the same as that of her husband, and if he wishes to change it, his wife must change it along with him. Whether she was in favor of it or not, was not taken into consideration due to the principle of unity of marriage.[15] Years later, Lord Denning criticized the law as “the last barbarous relic of the wife’s servitude.”[16] 

The aforementioned phrase gained much fame and helped achieve substantial alteration in the laws governing the domicile status of women in England. The rule of unity for the purpose of domicile was abolished, and under the English Act of 1973, a married woman could acquire a separate domicile as any independent person.[17] This Act operates in accordance with the spirit of equality of sex as embodied in many international treaties, conventions, and covenants, such as Article 16 (1) of the Universal Declaration of Human Rights, European Convention on Human Rights, International Covenant on Civil and Political Rights, etc. 

Other countries, such as the United States, initially failed to recognize the separate domicile of a married woman. This position was however, changed after the Law Reform Commission was established, and women are now allowed to choose their domicile.[18] Similarly, New Zealand, through the Domicile Act of 1976, abolished the old rule and allowed every married person the right to acquire their domicile independently.[19]

A 2008 survey commissioned by the Loomba Foundation on the treatment of widows, in which seventeen developed and developing nations participated across the globe, showed widespread mistreatment and disadvantage towards widows.[20] The two primary reasons for this disadvantage was ascertained to (i) low levels of economic development, and (ii) social norms biased against the widows. As per the report, 18% of the Indian widows claimed to be treated worse than the general female population. This survey is reflective of how widows still face mistreatment and continue to be at a disadvantage globally. It is, therefore, imperative that necessary changes be introduced at the earliest.

Conclusion

Given the societal inequity, many may state that the attachment of a widow’s domicile to that of her deceased husband is actually beneficial for her, as she will not have to undergo bureaucratic or territorial hurdles in order to claim her inheritance. She will become a Class I heir to her husband’s property as compared to a mere coparcenary to her parental inheritance, that will be further divided amongst several other relatives. Nevertheless, the authors firmly believe that all individuals, irrespective of their societal status, deserve a ‘right to choice.’

The law must not affix, dictate, or limit the residential identity of a widow, just like it should refrain from dictating their choices and identities in other aspects, for example, widow remarriage. The 110th Law Commission Report rightly suggested the addition of Section 16-A to the Indian Succession Act, 1925. This amendment would not only help with the social and political but also the economic upliftment of widows. In conclusion, the authors call for the enforcement of a long-delayed amendment in the existing law, wherein a widow should explicitly be given a right to choose her own domicile.


Dhriti Mitra and Pranay Tuteja are students from Symbiosis Law School, Pune.


[1]Kekhasaroo Sorabji Irani v. the State of Maharashtra, AIR (1972) Bom 357.

[2]Shiv Indersen Mirchandani of Bombay and Ors. v. Natasha Harish Advani and Ors., (2002) (2) BomCR43

[3]Trevor Todd, Domicile, Disinherited, https://disinherited.com/legal-definitions-and-terms/domicile/

[4]Indian Const. art 5.

[5]Sondur Gopal v. Sondur Rajini, AIR (2013) SC 2678.

[6]The Indian Succession Act, § 16, (1925).

[7]Law Commission of India, 110th Report on The Indian Succession Act, 1925, (February 1985).

[8]Ratan Kumari Tholia v. Sunder Lal Tholia, AIR (1959) Cal 787.

[9]Prakash v. Mst. Shahni, A.I.R. (1965) J & K 83.

[10]Indian Const. art 14.

[11]Indian Const. art 300A.

[12]Proles v. Kohli, (2018) EWHC 767(Ch).

[13]Danielle Richardson, Inheritance tax: thresholds, rates, and who pays, Which? (June 2020), https://www.which.co.uk/money/tax/inheritance-tax/inheritance-tax-thresholds-rates-and-who-pays-avrxm3k7kgxw

[14]Domicile Status and UK Inheritance Tax, Blevins Franks, (Mar. 09, 2016), https://www.blevinsfranks.com/news/blevinsfranks/article/inheritance-tax-and-domicile

[15]76/77, The Unity of Husband and Wife in Common Law, Law & Just. – (Christian L. Rev. 33, 1983).

[16]Justice M.D. Kirby, Lord Denning Master of the Rolls, Reformer, Iconoclast, Moralist, (1977), https://www.michaelkirby.com.au/images/stories/speeches/1970s/vol2/1977/26-Lord_Denning%2C_Master_of_the_Rolls%2C_Reformer%2C_Iconoclast%2C_Moralist.pdf

[17]Domicile and Matrimonial Proceedings Act, 1973.

[18]Russell J. Weintraub, Commentary on the Conflict of Laws, (1971). 

[19]Domicile Act of 1976, § 5.

[20]World Widows Report 2015, A Critical Issue for the Sustainable Development Goals, The Loomba Foundation, (February 2016), https://www.theloombafoundation.org/sites/default/files/2019-06/WWR.pdf

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

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