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Plea Filed in Kerala HC to make Indian Succession Act Apply to Registered Couples under Special Marriage Act

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Kerala HC Law Insider

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Published on: October 30, 2023 at 14:25 IST

A legal petition has been filed in the Kerala High Court, requesting a ruling that the Indian Succession Act, 1925 should be the governing law for inheritance when the parents’ marriage is registered under the Special Marriage Act, even if the couple initially married under their respective personal laws.

The petitioner had originally married his wife following Islamic Shariat Law customs, resulting in the birth of three daughters.

Under Islamic Shariat inheritance law, the daughters are entitled to only a 2/3 share of the couple’s property, with the remaining share going to the petitioner’s brothers and sisters, as per the law’s stipulations. This is due to the couple having no male children.

The petitioner argues that this legal provision is discriminatory and detrimental to the interests of his daughters.

To address this, the petitioner subsequently registered his marriage with his wife under the Special Marriage Act of 1954.

According to Section 21 of the Special Marriage Act, once a marriage is registered under it, the Indian Succession Act, 1925 becomes applicable.

However, the public discussion surrounding the application of the Indian Succession Act to couples who initially married following Islamic customs, and later registered their marriage under the Special Marriage Act, has led to ambiguity.

In an attempt to clarify this legal matter, the petitioner filed a plea, seeking the issuance of a notification or circular from the State authorities to clarify which law would apply for inheritance to children born to parents who registered their marriage under the Special Marriage Act: the Shariat Application Act of 1937 or the Indian Succession Act of 1925.

In the interim, the petitioner has requested a provisional notification or circular clarifying that the Indian Succession Act of 1925 applies to children born to parents who registered their marriage under the Special Marriage Act.

The matter was heard by Justice Devan Ramachandran, and the Court has called for a response from the Government. The case is scheduled for further consideration in two weeks.

Case Title: C. Shukkur v. State of Kerala & Ors. Case Number: WP(C) 35582/ 2023