P L D 1958 (W (PLP)

B. Z. KAIKAUS, J.‑This appeal under clause 10 of the Letters Patent arises out of an application filed under section 10 of the Divorce Act by the wife (hereinafter called the respondent) for dissolution of marriage in the Court of the District Judge, Rawalpindi. The husband took the objection that he was not domiciled in Pakistan but in the United Kingdom. The learned District Judge gave effect to this plea and dismissed the applica tion on the ground of lack of jurisdiction. On appeal Akhlaque Husain, J. held that the husband was not domiciled in U. K. but in Pakistan, and accepting the appeal, directed that the application for dissolution of marriage be heard on merits. This is an appeal by the husband (hereinafter called the appellant). The sole question involved in this appeal is as to the domicile of the appellant.

2. The grandfather of the appellant James Carter was admittedly domiciled in England. James Carter had, some time in the year 1857, joined the Royal Artillery and had come over to India. In 1865, he married Matilda Carrick whose parents were residents of India, though it is not known whether they were domiciled in India. James Carter was discharged from the Army in 1879, but he continued to live in India after his discharge. His parchment certificate shows Madras as his "Extended Place of Residence". William Frances, the father o the present appellant, was born in 1874. He joined the R. M. Railway Service as engine driver and continued such service till IA his retirement. After his retirement, he, started a billiards saloon in Banglore and he had been residing there till the year 1957 when he died. Albert William Carter, the present appellant, was born in 1904 at Mount Abu in Rajputana. He joined the service of North Western Railway at Karachi on 27th April, 1922. Till the Partition, he remained posted in the area which is now part of West Pakistan. On Partition, he opted for Pakistan. He was posted at Rawalpindi when he married the respondent Joan Merry Carter on the 21st of June, 1948. The present petition for divorce was filed on the 11th of November, 1954.

3. The appellant had not stated in his written statement as to what was his domicile. In his deposition as a witness, how ever, he claimed that he was domiciled in the United Kingdom. He stated that his father and grandfather were domiciled in the United Kingdom and they never changed either their nationality or their domicile. He stated further that it had been his intention to settle down after retirement in the United Kingdom. This intention he had expressed to the wife of his deceased brother and. to a friend Mr. H. S. F. Hamilton, in England. He produced affidavits of his father, Mrs. Carter his brother's wife, and Mr. H. S. F. Hamilton in order to support his plea. The learned District Judge, as already stated, accepted that the appellant was domiciled in the United Kingdom. On appeal the learned Single Judge in an exhaustive judgment came to the conclusion that the grandfather as well as the father of the appellant had abandoned their domicile of origin and had adopted Indian domicile. He held further that once the Indian domicile had been acquired, the mere fact that the appellant intended to settle in England after his retirement, would not change his domicile. An alternative argument was put forward before the learned Single Judge to the effect that the domicile was in any case in India. This argument the learned Single Judge rejected on the ground that throughout his period of service the appellant had resided in that part of India which is now West Pakistan and at the time of Partition he had opted for Pakistan.

4. Before us, the contention as to domicile in the United Kingdom has been altogether abandoned, probably because the learned Single Judge has demonstrated the utter hopelessness of such a contention. The only plea pressed before us is that the domicile of the appellant remained Indian and never became Pakistani.

5. According to the finding of the learned Single Judge, as already stated, India was the domicile of origin of the appellant "A domicile of origin is retained until a domicle of choice is in fact acquired" (Dicey's Cotltlict of Laws, Rule, 8 of rules relating to domicile) and to explain how a domicile of choice is acquired I will just reproduce Rule 7 from Dicey's Conflict of Laws :‑ "Every independent person can acquire a domicile of choice, by the combination of residence (factum), and inten tion of permanent or indefinite residence (animus manendi), but not otherwise ".' There is no need to cite any authority in support of the two propositions which I have stated above for they enunciated well established principles and in fact have not been contested before us.

6. There are, it will be observed, two requisites for the acquisition of a domicile, actual residence and an intention of permanent or indefinite residence. The appellant was actuall5yI residing in Pakistan at the time when the petition was filed and continues to reside here. Had he at the same time the animus mancnai, an intention of permanent or indefinite residence or, what is the same thin, had he the intention of making Pakistan his home, or of 'settling in Pakistan ? All these expressions are synonymous, will appear on reference to any commentary on the subject of domicile. True, there are some conventional rules also which sometimes attribute to a persona domicile on account of a fiction of law but apart from such conventional rules, the question to ask always is whether the person concerned has an intention to make a country his home or to settle in that country.

7. The learned Single Judge did not expressly deal with the question of intention of the appellant to reside permanently or indefinitely in Pakistan. I reproduce below the last para graph of his judgment wherein he has dealt with the plea of the appellant that the domicile was as yet Indian :‑ " As regards the question whether the respondent's domicile, himself does not claim Indian domicile. If his domicile was Indian before the Partition, it was clearly claimed by him after that event when lie opted for service in Pakistan. He had joined service in that part of the sub‑continent which is now West Pakistan and has all along lived here. I, there fore, hold that the present domicile of the respondent is in this country ".

8. It will be observed that there is no clear finding that the appellant had the requisite intention and it can be legitimately urged that oil the point which it was essential to decide for determination of the domicile there is no discussion. But let us go a step further and assume that the learned Single Judge did mean to state that animus menendi existed when he said that there was a change of domicile. Only two facts are referred to lit support of the finding that there was a change of domicile, the first being that prior to the partition the appellant had been living in that part of the country which is now West Pakistan and the second that lie had opted for Pakistan. With all respect I am unable to hold that these two facts, particularly in tile light of the attendant circumstances could be sufficient for an inference of permanent or indefinite residence. So far as the residence before tile Partition is concerned, it was residency only at the place where the appellant was posted as a railway employee and would not prove an intention of future indefinite residence. At the same time it would not be possible to infer from such residence an intention to reside in Pakistan when Pakistan did not exist at all at the time of such residence. So far as the option is concerned it may have been due to considerations other than an intention of making Pakistan his home. The appellant explained in the supplementary statement which we ourselves recorded that he opted for Pakistan because his prospects here were better and that may well have been so. In the case of a Muslim resident of India who opted for Pakistan the exercise of option would be presumptive, if not conclusive, proof, that he intended henceforth to live in Pakistan, but the same cannot be said of a person in the position of the appellant. His forefathers were, by domicile and nationality, English. The learned Single Judge had not rejected the case of the appellant that lie had the intention to settle in the United Kingdom after his retirement, but had assumed such intention and had field that it would not, by itself, change his domicile. There is, at the same time, a document on record which supports the appellant on this point. That is an application submitted by the appellant to the Deputy High Commissioner for United Kingdom in Pakistan under section 12 of the British Nationality Act, 1948, for registration as a citizen of the United Kingdom. In the application, it was stated that the appellant intended to make the United Kingdom his ordinary place of residence. Tills application had been submitted on the 20th of July, 1949, and on the 9th of December, 1949, and endorsement was made on this application to the effect that the applicant had been registered as a citizen of the United Kingdom. While even apart from this evidence as to his inten tion to settle in England after retirement it would be difficult to raise an inference, considering the circumstances of this case, that the appellant intended to settle in Pakistan, such inference become, all the more difficult in the face of this document. I may point out here that tile respondent was questioned in the witness‑box as to where the appellant wanted to settle after retirement and she said that she did not know. She did not allege that the appellant had already settled in Pakistan which would be the proper reply to give if the appellant had at that time acquired Pakistani domicile. It is true that the appellant had no intention of returning to India and it appears that he had forsaken that country for good, but that by itself, was neither scientific for loss of the domicile of origin nor would it that the appellant intended to make Pakistan his home. A domicile of origin sticks to a person, as a matter of law, till he has acquired another domicile, even if he has given up all inten tion of residing permanently or indefinitely in the country of his domicile. Before us is positive evidence which there is no reason at all to reject that he had no intention of indefinite residence in Pakistan for he intended to live in England, but even if there be a doubt as to whether he intended to live in Pakistan or in England the petition should be dismissed for in a petition under section 10 of the Divorce Act the onus is on the applicant to prove that the domicile of the parties is in Pakistan. And when a domicile of origin of a party is another country and a plea is taken that Pakistan was a domicile of choice there is, according to the authorities, a heavy onus cast on the petitioner to prove by clear evidence the acquisition of the Pakistani domicile. I will just reproduce a passage from Murphy v. Murphy and another (I L R 10 Lah. 607) where some English authorities arc referred to :‑ "In Vinans v. Attorney‑General (1904 A C 287) it was held that `the domicile of origin continues unless a fixed and settled intention of abandoning the first domicile and acquiring the second domicile is clearly shown'. Lord Halsbury L. C. observed as follows :‑ Now the law is plain, that where a domicile of origin is proved it lies upon the person who asserts a change of domicile to establish it, and it is necessary to prove that the person who is alleged to have changed his domicile had a fixed and determined purpose to make the place of the new domicile his permanent home'. Lord Macnaghten in the course of his judgment has expressed himself as follows.‑' In Munro v. Munro ((1840) 7 Cl. & F 876) Lord Cottenham observed that it was one of the principles adopted, not only by the law of England but generally by the laws of other countries, `that the domicile of origin must prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicile and acquiring another, as his sole domicile . . . . . . . . . Residence alone, he adds, `has no effect per .se, though it may be most important as a ground from which to infer intention'. Again, `The law,' said Lord Cairns, L. C. `is beyond all doubt clear with regard to the domicile of birth that the personal status‑indicated by that term clings and adheres to the subject of it until an actual change is made by which the personal status of another domicile is acquired. And after quoting Lord Westbury's view that an intention to acquire a domicile other than the one of origin must be a fixed and settled purpose, and that unless you are able to show that with perfect clearness and satisfaction to yourselves, it follows that a domicile of origin continues‑Lord Macnaghten observed: `So heavy is the burden cast upon those who seek to show that the domicile of origin has been superseded by a domicile of choice‑and rightly I think, a change of domicile is a serious matter‑serious enough when the competition is between two domiciles both within the ambit of one and the same kingdom or country‑more serious still when one of the two is altogether foreign. The change may involve far‑reaching consequences in regard to succession and distribution and other things which depend on domicile". In Arthur v Arthur (I L R 24 Lah. 490) the head‑note runs :‑ " The presumption of law is that the domicile of origin continues and is against I change of domicile and if the petitioner's domicile of origin is Scottish; it must be held to be so, until he is in a position to discharge the onus of proving that he has acquired an Indian domicile, and the law is clear that his bare statement is insufficient to discharge this onus. It has been laid down that evidence of this kind is to be accepted with considerable reserve, even if the truthfulness of the witness be admitted". Here, instead of the respondent discharging this heavy onus there are good grounds for a positive inference that the respondent did not intend to settle in Pakistan.

9. The learned Single Judge had also observed that the appellant has not claimed Indian domicile. That does not affect the decision. As I have already observed and as is clear from the judgments which I have cited and from rule 8 of the rules relating to domicile, the domicile of origin sticks to a person as a matter of law till he has acquired a new domicile, and it does not matter whether he intends not to live in that country in future. A person must have some domicile. Even if he forsakes' his country for good he retains its domicile till he actually settles in another country.

10. I would not, therefore, hold that the appellant had acquired a Pakistani domicile. I would accept this appeal and dismiss the application for dissolution of marriage on the ground that the Courts in Pakistan have no jurisdiction to entertain it. I would leave the parties to bear their own costs throughout. K. M. A. Appeal accepted.