Say the ratio out loud before you open Reasoning — recalling it unprompted is exactly what the exam pays for.
Why it matters
It is the unity of domicile at its harshest, and it is the case that makes the Indian position in ss. 15 and 16 of the Indian Succession Act, 1925 impossible to defend without argument.
Facts
A wife had never left Scotland. Her husband was domiciled in Queensland.
Held
She was held domiciled in Queensland, because her husband was.
Reasoning
Step one — the doctrine of dependence. English law recognised three classes of dependants — married women, children and lunatics — on the rationale that all three lacked capacity to acquire a domicile of choice. A wife's domicile was therefore her husband's, and it moved when his moved.
Step two — the rule takes no account of the facts. Because dependence is a rule of law and not an inference from conduct, residence is irrelevant. A woman who has never been to the country is domiciled there.
Step three — the consequence in matrimonial causes. Combined with the domiciliary rule of jurisdiction in Le Mesurier v. Le Mesurier, it meant that deserted wives had to seek the husband in his domicile to obtain a decree of divorce that would be recognised.
Exam use
It opens: Discuss the domicile of a married woman — and it is the case that shows what the rule really did.
Give the second case in the pair. In Att. Gen. for Alberta v. Cook even a judicially separated wife could acquire no separate domicile.
Then trace the two responses. England's was legislative: s. 1 of the Domicile and Matrimonial Proceedings Act 1973, so that from 1 January 1974 a wife's domicile is that of an independent person; and, before that, the judicial half of the movement in the Indyka line of cases. India did not follow. The Indian Succession Act, 1925, in ss. 15 and 16, keeps the older rule — on marriage the wife acquires the domicile of the husband, and during coverture her domicile is his — with only two exceptions, where the wife lives separately under a decree of court and where the husband is undergoing a life sentence.
Say plainly that this is a defect and say why. The rule was designed to keep a family under one personal law. Its actual operation, on the facts of Prem Pratap v. Jagat Pratap, is that a deserted wife is fixed with the domicile of the man who deserted her — the very hardship that drove English law first to Indyka and then to abolition.
It does not decide anything about India; it is the English authority whose harshness the Indian statute has preserved.