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Report No. 212

Chapter V

The Applicable Law of Succession

A. Under the Special Marriage Act 1872

As has been stated above, the first Special Marriage Act 1872 could initially be availed only by those who did not claim to be Hindu, Muslim, Christian, Sikh, Buddhist, Jain or Parsi. This posed a question as to which law of succession would apply to the parties to such a marriage and their offspring. Seven years before the enactment of this law a general law of succession had been enacted under the caption Indian Succession Act 1865. This Act was at the time of its enactment applicable to Christians and Jews but not to Hindus, Muslims, Sikhs, Buddhists, Jains and Parsis. It was now laid down in the Special Marriage Act 1872 that:

(i) A Hindu, Sikh, Buddhist or Jain who is a member of a joint family marries under this Act it would effect his severance from such family.

(ii) Succession to the property of any such person and of any issue of such marriage would be governed by the Indian Succession Act 1865.

(iii) Protection of the Caste Disabilities Removal Act 1850 will be available to the Hindus, Sikhs, Buddhists and Jains marrying under the Special Marriage Act 1872.

(iv) If a Hindu, Sikh, Buddhist or Jain marrying under the Special Marriage Act 1872 is the only son of his parents, his father can adopt a son notwithstanding the prohibition in Hindu law on adopting a son in the presence of a natural son.

In 1925 all succession laws then existing were incorporated into a new and comprehensive Indian Succession Act. Among the laws merged into this consolidating law were the old Indian Succession of 1865, the Parsi Succession Act 1865 and the Hindu Wills Act 1870. The chapter on inheritance under the old Indian Succession Act 1865 became Chapter II, and the Parsi Succession Act Chapter III, of Part V of the new Act. Provisions of the Hindu Wills Act 1870 were incorporated into Schedule III of the new Act. Since 1925 the reference to Indian Succession Act 1865 under the Special Marriage Act 1872 was to be deemed to be a reference to Chapter II in Part V of the new Indian Succession Act 1925.

Laws of Civil Marriages in India - A Proposal to Resolve certain Conflicts Back

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