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Report No. 212

C. Effect of the Amendment of 1976

On the recommendation of the Law Commission of India (59th Report, 1974) Parliament enacted the Marriage Laws (Amendment) Act 1976. This Act added Section 21-A to the Special Marriage Act 1954, which reads as follows:

"Where the marriage is solemnized under this Act of any person who professes the Hindu, Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion, section 19 and section 21 shall not apply and so much of section 20 as creates a disability shall also not apply."

Since 1976, therefore, the position of succession in the case of civil marriages is as follows:

(i) Where both parties to a civil marriage are Hindu, Buddhist, Sikh or Jain the Hindu Succession Act will apply.

(ii) Where only one party is a Hindu, Buddhist, Sikh or Jain and the other party belongs to any other religion the Indian Succession Act will apply.

(iii) Where a Muslim opts for a civil marriage, whether within or outside the Muslim community the Indian Succession Act will apply.

(iv) Where a Parsi opts for a civil marriage, whether within or outside his community the general inheritance law under the Indian Succession Act will apply -- not the Parsi succession law as incorporated in that Act.

(v) Where a Christian opts for a civil marriage, whether within or outside the Christian community, the Indian Succession Act will apply.

Under the impact of the Marriage Laws (Amendment) Act 1976, thus, citizens of India opting for a civil marriage are classified into three categories, viz.:

(a) Hindus, Buddhists, Sikhs and Jains marrying within these four communities;

(b) Hindus, Buddhists, Sikhs and Jains marrying outside these four communities; and

(c) All other citizens marrying either within or outside their respective communities.

This seems to be an unreasonable classification as all personal laws have the same legal status in the country.The Muslims and Parsis give utmost importance to their personal laws of succession. The Muslim law of inheritance is drawn direct from the Holy Quran and therefore a predominant section of Muslims wants to adhere to it.

The prospect of losing it in case they go in for a civil marriage greatly inhibits them and compels them to remain away from the Special Marriage Act 1954. The Parsis had got their religion- based law of inheritance codified in the form of the Parsi Succession Act 1865 which was, on their demand, preserved even under the new consolidating law called the Indian Succession Act 1925. For this reason no Parsi wants to make use of the Special Marriage Act 1954 as it would deprive them of their law of succession.

There seems to be no reason why the Special Marriage Act 1954 should at all make a provision regarding succession law to be applied in case of civil marriages. Under the old Special Marriage Act 1872 parties to a civil marriage had to dissociate themselves from religion and so any community-specific law of succession could not apply in any such case. As this would create a vacuum, it was unavoidable to make the Indian Succession Act 1865 applicable to them.

But, this is not the case under the new Special Marriage Act 1954 under which there is no need to renounce religion in any case of a civil marriage. So, succession to the properties of the parties may well continue to be governed by their respective personal laws, whether they belong to the same community or to two different communities - especially since in this country there is no concept of a married couple's joint property.

It may, of course, be made possible for any individual to opt for the Indian Succession Act 1925 irrespective of whether his or her marriage is a civil marriage or a religious marriage governed by a personal law. But the present linkage between civil marriages and the applicable law of succession serves no purpose. On the contrary, for certain communities it is a discouragement and a serious inhibition against opting for a civil marriage.



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




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