Indian Succession Act Applies Where Parties Married Under Personal Law Register Under Special Marriage Act: Plea In Kerala High Court

A lawyer has moved the Kerala High Court seeking a declaration that the law of inheritance for children of parents whose marriage is registered under the Special Marriage Act would be the Indian Succession Act, 1925 in all scenarios even if the parties had initially solemnised married under their respective personal law.

The petitioner herein had married his wife as per the Muslim custom, which is Islamic Shariat Law, and three daughters were born to the couple. 

The petitioner avers that as per the Islamic Shariat law of inheritance, their daughters would only get 2/3rd share of the couple's properties, while the remaining would devolve upon the brothers and sisters of the petitioner, in the proportion prescribed under the Islamic Shariat Law. The petitioner states that this is because the couple does not have any male child.

The petitioner submits that the above position of law is discriminatory and detrimental to the interest of his daughters.

The petitioner says that he thereafter, registered his marriage with his wife under the Special Marriage Act, 1954 so that he could overcome the restriction imposed by Shariat Act, since as per Section 21 of the Special Marriage Act, the Indian Succession Act, 1925 would apply once a marriage has been registered under the former. 

He adds that since his marriage with his wife under the Special Marriage Act had gained significant public attention, discussions arose as to whether the Indian Succession Act would apply to those who married as per Islamic customs and subsequently registered their marriage under Special Marriage Act, creating an ambiguity upon the position. The petitioner states that when he posed a query in this regard before the Public Information Officer in various parts of the State, and added that the replies he got were inconsistent with each other. 

"There are several instances where the brothers and sisters of the deceased are filing suit before the Civil Courts claiming right over the property of their deceased brother without any justification. Especially who are not persons having cordial relationship with the family members of the deceased and also those who do not even care to maintain or look after them after the death of their brother. Since these provisions are discriminatory to the women in Islam and those who want to overcome the unreasonable and arbitrary provision applicable to them as per their custom, the only way out is to register their marriage under the Special Marriage Act," the petitioner avers. 

It is in this regard that the petitioner has filed the present plea seeking a direction to be issued to the respondent State authorities to issue appropriate notification or circular clarifying as to whether the provision of law applicable for inheritance to the children born to the parents married under the Special Marriage Act would be the Shariat Application Act 1937 or Indian Succession Act 1925.

In the interim, the petitioner seeks the issuance of a provisional notification or circular clarifying that the provision of law applicable for inheritance of children born to parents who registered their marriage under the Special Marriage Act is the Indian Succession Act, 1925. 

When the matter was taken up by the Single Judge Bench of Justice Devan Ramachandran today, the Court sought the response of the Government in this regard. 

The matter has been posted for consideration after two weeks. 

The plea has been moved through Advocates Abdul Raoof P., K.R. Avinash, E. Mohammed Shafi, Prajith Ratnakaran, Abdul Rasak C.H., and Krishna Priya. 

Case Title: C. Shukkur v. State of Kerala & Ors. 

Case Number: WP(C) 35582/ 2023