Ordinary Resident

Introduction
Ordinary resident is a deceptively simple phrase that recurs across Indian statutes — most prominently in taxation and electoral law — but its legal effect varies sharply with context. For practitioners, the concept is pivotal: it determines tax liability, voter registration and entitlement to service/postal voting, citizenship and certain social welfare entitlements. The core point to stress from the outset is that “ordinary residence” is a question of fact and law, governed by statute where defined and by contextual interpretation elsewhere. A client’s factual matrix (permanent home, intention, frequency and duration of absence, family and economic links) often decides the issue more than a declaratory label.

Core Legal Framework
– Income-tax Act, 1961 — Section 6 (residence and ordinarily resident).
– Section 6 defines three categories for an individual in a previous year: “resident and ordinarily resident” (ROR), “resident but not ordinarily resident” (RNOR) and “non-resident” (NR). The statutory tests are in Section 6(1)–6(6). The important statutory test for “ordinarily resident” is in Section 6(6):
– An individual is “ordinarily resident” in India in a previous year if he satisfies both the conditions:
(a) he has been resident in India in at least two out of the ten previous years immediately preceding that year; and
(b) he has been in India for a period of 730 days or more during the seven previous years immediately preceding that year.
– (Practical note: Section 6(1) contains the primary tests of residence — physical presence thresholds — on which the “ordinarily resident” status builds.)
– Representation of the People Act, 1950 and Election Law (practical framework)
– Although the RPA, 1950 does not contain a single universal definition of “ordinary resident” on the lines of the Income-tax Act, the phrase governs who is entitled to be entered in a particular part of the electoral roll for a constituency. The statutory scheme for preparation and revision of electoral rolls (various sections and rules under RPA, 1950) and the Registration of Electors Rules (and Conduct of Elections Rules, 1961) as read with Election Commission of India (ECI) instructions govern whether a person is “ordinarily resident” in a polling area.
– The ECI has repeatedly interpreted ordinary residence for voter-registration, postal ballots and service voters (armed forces, central paramilitary forces, government servants posted outside their home). The classic practical rule: temporary postings or absences do not necessarily change ordinary residence; the place of ordinary residence is where a person normally resides and has his usual home — and a soldier posted away retains ordinary residence at his home for electoral purposes unless clear proof of change of ordinary residence exists.
– Other statutes and contexts
– Citizenship Act, 1955, Passport Rules, social welfare schemes and certain labour laws use “ordinary residence” or similar concepts; each statute may impose its own temporal, factual or documentary tests. Where a definition is absent, principles from tax and electoral practice, and relevant case law, inform interpretation.

Practical Application and Nuances
This is where practitioners must focus: the same words operate differently in different contexts. Below are detailed practical rules, evidence pointers and sample argument lines that work in the courts and administrative proceedings.

A. Income-tax (resident vs. ordinarily resident)
– The statutory test is objective and arithmetic in part (730 days in 7 years; resident in at least 2 out of 10 previous years). But two points are crucial:
1. Residence (Section 6(1)) is primarily about physical presence; “ordinarily resident” adds a sustained-attachment test.
2. The statutory days are a threshold — but courts examine the whole conduct: family presence, home ownership, nature of employment, business links, domicile, bank accounts, memberships.
– Practical proof to establish or rebut ROR:
– Produce passport stamps, immigration records, employer posting orders, duty rosters, leave records, residential lease deeds, electricity/water bills, bank/credit card statements showing local usage, school records of children, family residence proofs, income sources, property tax receipts.
– For outward migration claims (client says RNOR or NR): contemporaneous documents demonstrating effective relocation — foreign employment contract, rent/utility bills abroad, tax returns filed abroad, long uninterrupted stays abroad — are persuasive.
– Practical examples:
– Short term foreign postings of under 182 days in a year will not displace resident status; multiple short trips across years are examined cumulatively for the 730/7 and 2/10 tests.
– A senior employee posted abroad for 3 years with spouse and children relocating and Indian home vacated is likely to be RNOR/NR depending on days and earlier residence; mere intention to return is insufficient if other indicia suggest broken residential nexus.
– Drafting/advice points:
– Always advise clients to maintain contemporaneous documentary records of travel and stays.
– For litigation, prepare a consolidated day-to-day chart for the relevant earlier years showing presence or absence in India; use documentary corroboration for critical stretches.

B. Electoral law — registering as an ordinary resident for a constituency; service voters
– Principle: Ordinary residence for electoral roll is locality-centric; it concerns where a person normally resides and has his usual home. Short absences (work, training, posting) ordinarily do not change ordinary residence.
– Practical application:
– For service personnel (armed forces, central paramilitary, government servants), the ECI’s practice and various High Court decisions hold that those periodically posted away retain ordinary residence at their permanent home address, unless clear evidence shows they have established a new ordinary residence.
– Postal ballot entitlement and service voter registration: the scheme protects the right to vote at the home constituency. For those entitled to postal ballot, identity and residential proof of the home address are key.
– Evidence typically relied upon:
– Proof of ownership/tenancy at home address, family residence at that address, ration/electricity bills, employer’s posting orders (showing temporary nature), voter slip from earlier rolls, income tax returns filed at the home address.
– Practical examples:
– Army person posted for several years in another state: usually retains ordinary residence at family home. To show change, opposing counsel must prove that the person established a new home (family relocated, long-term lease at new place, transfer of school of children, etc.).
– Migrant workers: their migratory work pattern can complicate ordinary residence; a seasonal migrant may still be ordinarily resident in home village.
– Procedural practice:
– Challenging or establishing ordinary residence in electoral roll matters typically begins before the Electoral Registration Officer (ERO) with documentary proof and, if necessary, writ petitions or election petition challenges to Returning Officer’s decisions.
– Use ECI guidelines and earlier ERO decisions to show administrative practice.

C. Cross-cutting evidentiary and tactical points
– Ordinary residence is primarily a multi-factorial, fact-intensive enquiry. No single document is decisive unless statute prescribes one.
– Time and continuity matter: day-counts (for tax), habitual abode and settled intention (for electoral/citizenship) are both relevant.
– Where statute defines numerical tests (like Income-tax), begin with arithmetic compliance and then show supporting circumstantial evidence.

Landmark Judgments
Given that “ordinary residence” is context-dependent, courts have repeatedly emphasised that it is a question of fact and mixed law. A few principles distilled from appellate jurisprudence (check the latest citations and local High Court precedents for up-to-date authority before relying in court):
– The statutory tests (e.g., Income-tax Act Section 6) are to be applied literally for tax residence; but courts will also look to the broader factual matrix to interpret “ordinarily resident.”
– For electoral matters, High Courts and tribunals have recognised that temporary postings do not necessarily disturb ordinary residence at home; ECI orders and administrative records are heavily relied upon.
Practical step: always cite the most recent authoritative decisions in your jurisdiction (Supreme Court decisions on tax residence and local High Court decisions on electoral residence) because the nuanced ratio varies by facts.

Strategic Considerations for Practitioners
– Identify context and statute first: resolve whether the dispute is about tax liability (Income-tax Act) or electoral entitlement (RPA / ECI). The applicable test differs.
– Evidence management:
– Build a contemporaneous documentary trail. For tax, day count charts and travel documents are indispensable. For electoral matters, evidence that family and home remained in the constituency is decisive.
– Use witness statements: family members, neighbours, employer, commanding officer (for service personnel), school authorities — to corroborate habitual residence.
– Pre-emptive administrative remedies:
– For electoral disputes, approach the ERO/RO with comprehensive proof during roll revision; administrative acceptance often avoids litigation.
– For taxation, seek advance rulings only in narrow, cross-border fact patterns (if eligible) or use pre-litigation assessment-stage submissions to settle days and residence classification.
– Court strategy:
– Emphasise facts that establish continuity of home (family presence, home maintenance, social and economic ties).
– Anticipate the opponent’s attempt to show intent to change residence: they will focus on documents like rental agreements, school transfers, joint accounts. Neutralise by showing temporary nature or absence of family transfer.
– If client has mixed indicators, frame the argument around the correct legal test: for tax use the statutory numeric thresholds first; for electoral cases show the habitual home test and administrative practice.
– Pitfalls to avoid:
– Overreliance on intention: declarations of intention are weak unless supported by conduct.
– Failing to maintain contemporaneous records: courts tolerate gaps badly.
– Treating different regimes as interchangeable: winning a tax residence argument does not automatically win electoral residence and vice versa.
– Ignoring statutory time-limits and procedural remedies (revision of electoral roll, objections in prescribed windows, response to income-tax notices).

Checklist for Clients (practical, short)
– Maintain original travel documents, employer posting/transfer orders, leave records, and daily movement logs for key years.
– Keep utility bills, property tax receipts, family school records, bank statements and voter ID details at the claimed ordinary residence.
– For service personnel: get a certificate from commanding officer regarding nature and expected duration of posting; keep evidence that family continues to reside at home address.
– Consult early: residence/loss of ordinary residence usually becomes contentious years after events; early documentation reduces dispute.

Conclusion
“Ordinary residence” is not a mere label but a fact-based legal status whose consequences are heavy — affecting where one pays tax and where one votes, among other rights. For lawyers, the task is to identify the governing statutory test, assemble a tightly corroborated documentary and testimonial record, and tailor the argument to the specific legal standard (numeric thresholds in tax; habitual-home test in electoral and other administrative contexts). The practitioner’s advantage lies in meticulous evidence-gathering, precise day-counting where relevant, and early engagement with administrative authorities (ERO, tax authorities) to avoid protracted litigation. Always verify the latest local case law and ECI orders before filing; the factual subtleties frequently decide outcomes.