Report No. 15
47. Succession to the properties of a wife dying intestate after a decree for judicial separation.-
Section 24 of the Indian Divorce Act, 1869, further provides that when there has been a decree for judicial separation, the properties acquired by or devolving on the wife shall, if she dies intestate, devolve as if her husband had then been dead. This was the law in England when the Indian Divorce Act, 1869, was enacted, and that continues to be the law even now under section 21(1)(a) of the Matrimonial Causes Act, 1950. The question is, whether the law should now be laid down in those terms. On principle, the distinction between judicial separation and divorce is that, while in the latter the marriage tie is dissolved, in the former it still subsists.
If persons continue to be related, in the eye of law, as husband and wife, and if one of them dies intestate, the persons who are entitled to succeed to the properties must be his or her heirs on the footing that he or she is a married person. In that view, if a married woman dies after the passing of a decree of judicial separation, her husband will be one of the heirs. Likewise, if the husband dies after a decree for judicial separation is passed, the wife will be one of his heirs.
To provide, therefore, that on the death of a married woman, in respect of whom a decree for judicial separation has been passed, her property will devolve as if her husband were dead even though he is in fact alive, is to ignore the very basis of the jural relationship between the parties when the decree passed is one of judicial separation and not of divorce. Such a provision is, therefore, clearly illogical. It is to be further noted that under the law of England, if a husband dies after a decree for judicial separation is passed, the wife is entitled to succeed as one of his heirs.
That is on the footing that the marriage still subsists; and equally the husband must be entitled to succeed to the properties of his wife when she dies intestate after a decree for judicial separation is made, but for the special rule enacted in section 25. We see no reason to adopt different rules as regards the two spouses, and it may be mentioned that in neither the Special Marriage Act, 1954, nor the Hindu Marriage Act 1955, has the law as laid down in section 25 been adopted. We have therefore omitted the special provisions in sections 24 and 25 of the Indian Divorce Act.