Rashid Hasan Roomi v. Union of India

It shows the domicile of dependence being pressed to an absurd conclusion, and rejected. It is also the case in which a rule of private international law decides whether a man is a citizen and whether he may be interned.

The petitioner was born in India of Indian parents and had never left. His father migrated to Pakistan in 1948, leaving him behind as a minor. He cultivated his land, was on the electoral roll and had been elected Chairman of his Town Area Committee. The State argued, citing the textbook rule that the domicile of an infant automatically changes with any change in the domicile of the father, that he was therefore not domiciled in India on 26 January 1950 and was a foreigner liable to internment.

The argument, though ingenious, is based on a fallacy. The petitioner was set at liberty.

Step one — identify what the rule of dependence actually does. At birth a child has two domiciles, origin and dependence, and they usually coincide; the domicile of origin then stays fixed for life while the domicile of dependence moves with the person on whom the child depends.

Step two — name the fallacy. The rule transmits the father's domicile to a child who is with him or under his control. It is not a rule that a child left behind in the country of his birth — cultivating his land, on the electoral roll, elected to local office — is deemed to have gone abroad because his father did.

Step three — keep the two statuses apart. Citizenship is political status and domicile civil status, and they represent different conceptions — D.P. Joshi v. State of Madhya Pradesh. Art. 5 uses domicile as a criterion, which is exactly why the domicile question had to be decided correctly rather than mechanically.

It opens: Explain the domicile of dependence, and any question on the constitutional use of domicile.

Give the structure of dependence first. Three dependants were recognised — married women, children and lunatics — on the rationale that all three lacked capacity to acquire a domicile of choice. England abolished the wife's dependence in 1973; India preserved it in ss. 15 and 16 of the Indian Succession Act, 1925, applied in Prem Pratap v. Jagat Pratap.

Pair this case with D.P. Joshi as the two constitutional cases: one holds that a domicile-based concession is not discrimination on place of birth; the other refuses to let the domicile of dependence manufacture a foreigner out of a man who never left.

Draw the general lesson for problem questions. A rule of dependence, like a rule of revival, exists to ensure that nobody is left without a domicile. It is not a device for producing a domicile that contradicts every fact of the person's life.

It does not decide the general question when a minor's domicile changes with his father's; it decides that the rule does not apply to a child who stayed behind.