Introduction
The Special Marriage Act, 1954, as the name suggests is an Act to provide for a special mode of marriage. Any person in India can marry under this Act, irrespective of their religion or faith. They can also get married according to any religious ceremonies or customs which they prefer, but if they wish to be governered by the Act then they need to get their marriage registered under this Act. However, in addition to providing for a special form of marriage, this Act also changes certain conventional succession patterns. It provides a very important deviation from the generally understood testamentary and nontestamentary succession for people married under this Act. That is what makes this Act important.
Earlier, the Act also had provisions for registering the marriages of Indian citizens residing abroad. However, by virtue of the enactment of the Foreign Marriage Act, 1969, those provisions have been deleted from the Special Marriage Act.
Applicability of the Act
This Act applies to:
(a) Any person, irrespective of religion.
(b) Hindus, Buddhists, Jains, Sikhs, who get their marriage registered under the Act.
(c) Muslims, Christians, Parsis or Jews who get their marriage registered under the Act.
(d) Inter-caste marriages registered under the Act. For instance, a Hindu marrying a Muslim or a Parsi marrying a Jain. Conditions for Special Marriage A marriage can be registered under this Act irrespective of anything contrary contained in any other law relating to marriages.
The following conditions must be fulfilled:
(a) Neither party must have a living spouse. Thus, bigamy is not permissible.
(b) Each of the parties:(i) must be capable of giving a valid consent to the marriage and must be of sound mind. (ii) though capable of giving such valid consent, must not suffer from mental disorder which would render the person unfit for marriage and the protection of children. (iii) must not be subject to recurrent attacks of insanity.
(c) The male must be of at least 21 years and the female must be of at least 18 years.
(d) One of the important conditions for registering a marriage is that the parties must not be related to each other within degrees of prohibited relationship. The Act lays down a list of relatives in relation to a person who are treated as within degrees of prohibited relationship. For instance, a man and his mother’s sister’s daughter (i.e., his cousin sister) cannot get married. However, if a custom governing at least one of the parties permits a marriage between the degrees of prohibited relationship, then the marriage may be permissible. For instance, in some religions, a person is permitted to marry his/her cousin.
All the above conditions are cumulative.
Process of Special Marriage
Whoever intends to get his marriage solemnised under the Act, must first give a Notice to the appropriate Marriage Officer. The Marriage Officer shall record the Notice received by him and enter a copy of the same in the Marriage Notice Book maintained by him.
If any person has any objection to the marriage, then he can object only on grounds that one of the conditions (specified above) are not fulfilled.
The marriage can be solemnised after 30 days from the Notice. The Marriage Officer shall issue a Certificate of Marriage which is conclusive evidence that the marriage has been solemnised under the Act and that all formalities specified therein have been complied with.
Any marriage which has been performed by a ceremony in any other form, e.g., marriage between two Hindus or two Muslims, etc., may also be registered under the Act. Thus, already married couples can get their marriages registered under this Act. Once they get their marriage so registered, it would be deemed to be a marriage solemnised under the Act and all children born after the date of marriage ceremony shall be deemed to always have been legitimate children. The names of such children are also required to be entered into the Marriage Register Book. Effect of marriage on HUF Section 19 of the Act prescribes that any member of a Hindu Undivided Family who gets married under this Act automatically severs his ties with the HUF. Thus, if a Hindu, Buddhist, Sikh or Jain gets married under the Act, then he ceases to be a member of his HUF. He need not go in for a partition since the marriage itself severs his relationship with his family.
He cannot even subsequently raise a plea for partitioning the joint family property since by getting married under the Act he automatically gets separated from the HUF.
However, this provision of section 19 should be read subject to section 21-A of the Act. This section provides that where the marriage solemnised under this Act takes place between a person of Hindu, Buddhist, Sikh or Jaina religion with a person who is also of Hindu, Buddhist, Sikh or Jain religion, then section 19 shall not apply. Thus, the severance from an HUF would take place only if a Hindu marries a non- Hindu.
Succession to property
Section 21 of the Special Marriage Act is by far the most important provision. It changes the normal succession pattern laid down by law in case of any person whose marriage is registered under the Act. It states that the Act overrides the provisions of the Indian Succession Act, 1925 with respect to its application to members of certain communities. The succession to property of any person whose marriage is solemnised under the Act and to the property of any child of such marriage shall be regulated by the Indian Succession Act, 1925. Thus, it removes the bar imposed by the Indian Succession Act, 1925, not only for the couple married under the Act, but also for the children born out of such wedlock.
Wills by Muslims
The biggest impact of section 21 is in the case of Muslims. The Muslim Law prevents a Muslim from bequeathing his whole property in a will and allows him to make a will only qua 1/3rd of his estate. He can bequeath more than 1/3rd of his property if his heirs give consent to the same. However, the impact of a Muslim getting married under this Act is that the Indian Succession Act would apply to all cases of testamentary succession (i.e., through will) or intestate succession (i.e., without will) of such a Muslim. Hence, by merely solemnising or registering an already conducted marriage under this Act, a Muslim couple can bequeath their entire property in accordance with their wishes and not be bound by their personal Muslim Law restriction of 1/3rd or property.
This view has been upheld by the Bombay High Court in the case of Sayeeda Shakur Khan v. Sajid Phaniband, 2006 (5) Bom. C.R. 7. In this case, a Muslim couple got married as per Mohammedan Law. They once again got their marriage solemnised under the Act after a few years. On the death of the husband an issue arose amongst his heirs as to whether the succession should be as per Muslim Law? A single Judge of the Bombay High Court held that because the marriage of the deceased was registered under the Act, all succession would be as per the Indian Succession Act, 1925 and not as per the Muslim Law. It also held that such a person is entitled to bequeath his entire property and not just 1/3rd as per Muslim Law. This view was also held by the Bombay High Court in the case Bilquis Zakiuddin Bandookwala v. Shehnaz Shabbir Bandukwala, RP No. 41 of 2010 (Bom). It held that intestate succession of a Muslim marrying under the Act would be governed by sections 31-40 of the Indian Succession Act, whereas his testate succession would be governed by sections 57-58 of the Indian Succession Act.
Does a will of a Muslim require a probate?
Another question before the High Court in Sayeeda Shakur Khan v. Sajid Phaniband, 2006 (5) Bom. C.R. 7 was whether the will of such a Muslim requires a probate? It held that once the Indian Succession Act applies to a Muslim, then all the provisions of the Act would apply with equal force. Section 57 of this Act provides that any will by Hindus, Buddhists, Sikhs, Jains in the places within the local jurisdiction of the High Courts of Bombay, Calcutta and Madras requires a probate. However, since the Special Marriage Act removes all restrictions for people married under the Act, the High Court held that the will of a Muslim requires a probate.
However, in the case of Bilquis Zakiuddin Bandookwala v. Shehnaz Shabbir Bandukwala, R.P. No. 41 of 2010 (Bom.), another Single Judge of the Bombay High Court has taken an exactly contrary view after considering the earlier judgment. The Court referred to section 58 of the Indian Succession Act which states that section 57 requiring a probate shall not apply to property of any Mohammedan. It also referred to section 213 of the Indian Succession Act which provides that an executor or a legatee cannot establish any right in a Court for which probate is not granted. However, section 213(2) exempts Muslims from this section. The Judge held that section 21 of the Special Marriage Act and sections 57, 58, 213(2) of the Indian Succession Act must be read together and reconciled. Since section 213(2) exempts Muslims from probates, there is no need for a Muslim to get a probate even if he is married under the Special Marriage Act.
Thus, there is a judicial controversy over whether or not a Muslim’s will needs a probate. However, since the second decision is later and has considered the earlier decision, reliance may be placed upon the same.
Role of a CA/Auditor
Normally, a CA in his capacity as an Auditor is not directly involved with wills and succession issues. Nevertheless, an Auditor can provide value added services to his clients if he is aware of the law in this respect. He can be of great assistance to his clients in cases of succession planning and estate planning.
