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Report No. 59

9.2. Section 19, Special Marriage Act.-

Section 19 of the Special Marriage Act, is as follows:-

"The marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religion shall be deemed to effect his severance from such family."

This section corresponds to section 22 of the Special Marriage Act, 1872, which was inserted in 1923, and its principal object is to replace co-parcenary rights and other rights concerning the Hindu undivided family by a position under which the person marrying will become a divided co-parcener. The section creates a statutory severance of a person married under this Act from the joint family of which he might have been till then a member. At the time when this section originally came on the statute book (i.e. in 1923) special marriages were rare, and the prejudice against them supplied some cause for visiting such marriages with the compulsory consequence of severance from the family. It appears that in the discussion on the 1923 Amendment to the Special Marriage Act, 1872 (then in force), this section occupied a prominent place. Dr. Gour (who had sponsored the amendment Act) says1:-

"The orthodox members of the Select Committee had proposed this clause as a deterrent against persons resorting to such marriages. But the present writer accepted it as a happy release from a continued union in which embarrassing situation might be created by the orthodox members of his family, contesting his right in his property by survivorship or inheritance, in which case the misfortunes of the widows married under the amended Act and their children would be aggravated because of the persons marrying under the amended Act having to declare that they professed the Hindu religion, and since the lex loci is construed by the Privy Council in a limited sense as noted under that Act, a Hindu marrying under the Act does not stand to gain by continuing to remain a member of the co-parcenary. But so far as his own rights are concerned, he remains entitled to all those rights of inheritance to his other relations, near and remote as if he had never married under the Act."

1. Gour Hindu Code, (1938), p. 1199.

Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back

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