Why a Muslim couple in Kerala is remarrying under the Special Marriage Act

How do Muslim inheritance laws work?

Inheritance for Muslims in India is governed by the Muslim Personal Law (Shariat) Application Act, 1937. This legislation that codifies Shariat recognises two kinds of legal heirs- sharers and residuaries.

A legal heir who gets a share in the inheritance are twelve categories- (1) Husband, (2) Wife, (3) Daughter, (4) Daughter of a son (or son’s son or son’s son and so on), (5) Father, (6) Paternal Grandfather, (7) Mother, (8) Grandmother on the male line, (9) Full sister (10) Consanguine sister (11) Uterine sister, and (12) Uterine brother.

Residuary heirs can be aunts, uncles, nieces, nephews and other distant relatives. The value of their share depends on several scenarios. For example, a wife takes 1/8 share of her husband’s property upon his death if they have lineal descendants. If not, she takes 1/4th share. Daughters cannot inherit more than half of what the sons inherit. The estate of a Muslim can only pass to a Muslim, which prejudices the wife or children following another religion.

Why can’t the couple make a will in favour of their daughters?

Under Shariat law, only 1/3 of the estate can be willed in favour of anyone. The remaining will still have to be divided as per the complex religious law. Therefore, a Muslim couple has no way under the religious law to make someone their sole heirs.

How is the couple circumventing this law?

Shukkur and Sheena were first married in 1994 by a local Qazi. The couple has now chosen to register their marriage under the Special Marriage Act. Section 15 of the SMA allows for any marriage celebrated not according to the provisions of the Special Marriage Act can be registered under the Act. This can happen when:

(a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;

(b) neither party has at the time of registration more than one spouse living;

(c) neither party is an idiot or a lunatic at the time of registration;

(d) the parties have completed the age of twenty-one years at the time of registration;

(e) the parties are not within the degrees of prohibited relationship

The procedure for registering an existing marriage would be the same as solemnizing a new marriage. Both the parties must have been residing within the district of the Marriage Officer for a period of not less than thirty days and a 30 day notice is given by the Marriage Officer for objections.

The registration of the marriage under SMA would mean that the couple would now be governed under secular law and for inheritance, the Indian Succession Act would apply.

Is this a novel approach?

Taking refuge under the Special Marriage Act to avoid religious laws is not new. In fact, this was the purpose of enacting the Special Marriage Act.

For example, divorce was recognised only in exceptional circumstances among Christians. The Indian Divorce Act, 1869 which regulates the law relating to divorce for Christians recognised adultery as the only grounds for divorce till as recent as 2001 when the law was amended. Section 10 of the Act had required a Christian wife to prove that her husband had been indulging in “incestuous adultery” or “adultery coupled with cruelty or desertion” in order to seek divorce.

In 2001, the Indian Divorce (Amendment) Act, 2001 was passed which recognised other grounds to seek dissolution of marriage. Till then, for many Christian couples seeking to divorce, a practical route would be to register their marriage under the Special Marriage Act and then move for divorce under the civil law.