Individual preferences versus community law
The family law currently in force in the country is a hotchpotch of religious and secular laws.
An undesirable aspect of the family law system in India, long overdue for reform, has at last reached the Supreme Court for redress. A Muslim woman from Kerala has approached the Court seeking relief that she should have the legal freedom to opt out of her personal law and be governed by the country’s secular laws.
The family law currently in force in the country is a hotchpotch of religious and secular laws. All religion-based personal laws except those of Muslims are codified — their law has so far been subjected only to sporadic reforms. By availing the provisions of the Special Marriage Act 1954 the parties intending to get married can abandon their personal law on the subject, but those who are not married — or do not want to get married (a group that is fast growing) — have no choice but to be governed by the personal law of the community into which they were born. This is a loophole in the system of the country that needs to be plugged.
As regards the Special Marriage Act, we have had a law bearing this name since 1872 offering the option of a civil marriage. But to avail of its provisions, both parties had to formally abandon their religion. The Hindu Code Bill, moved into the central legislature in 1946, contained a chapter on civil marriages as an alternative to religious marriages. It was later felt that the facility to opt for a civil marriage should be available to all communities. The chapter was then taken out of the Bill, redrafted, and enacted as the new Special Marriage Act of 1954. It is an enabling law and does not compulsorily apply to any person. The general impression that it is meant only to facilitate inter-religious marriage is not correct. The Act is available both for intra-religious and interfaith marriages. In no case are the parties required to abandon religion, nor for one party to convert to the other’s faith if they belong to different communities. A couple already married under their personal law can also change its nature to a civil marriage by registering it under the Act.
The old Special Marriage Act 1872 laid down that all those married under it would in matters of inheritance and wills be governed by the Indian Succession Act 1865 (later merged into the new consolidating Indian Succession Act of 1925). This provision was retained in the new Special Marriage Act 1954 until 1976. By an amendment made in that year it was laid down that if the parties to a civil marriage are Hindu, Buddhist, Jain or Sikh, they would be governed by the Hindu Succession Act 1956. For all others, the law remained unchanged.
The civil court laws of India enacted in the 19th century directed the courts to prefer local custom over personal laws. As this legal proposition deprived Muslim women of their inheritance rights, the community demanded a law mandating the application of their personal law in all family matters. Hence, the Muslim Personal Law (Shariat) Application Act was enacted in 1937 directing the courts to apply Muslim law to Muslim parties “notwithstanding any custom to the contrary”. Strangely, it provided for compulsory application of the Muslim law of inheritance in all cases but in the matter of wills to only those who filed a declaration that they so wanted. Even with such a declaration, due to the non-obstante clause cited above, they would be governed by custom, if any, and not by the Indian Succession Act 1925. The said Act has an elaborate chapter on wills (Part VI) but declares at the outset that it will not apply to Muslims (Section 58).
In the matter of wills, Muslim law imposes multiple restrictions on all property owners. Under the various schools of Muslim law, no one can make a will of more than a third of his or her heritable property. A will contravening this rule would be void to the extent of the excess of over one-third unless the testator’s legal heirs approve it after his or her death. Under all Sunni schools, a person cannot also bequeath any property (not even one-third) to a would-be heir (one who will get a share in the testator’s property after his or her death). So, a will in favour of the wife or a daughter will be void and ineffective (unless the other heirs agree to it). However, this restriction is not mandated under Shia law.
Neither of these limitations on making a will is mentioned in the Quran. Whatever might have been the considerations for imposing such restrictions when Muslim lawmakers of the time had done so over a millennium ago, these are clearly unreasonable in this day and age. All property owners should have unrestricted freedom to bequeath their property, or part thereof, to whoever they like. Any reform of the law to this effect in India will not go against any tenet of the Quran — the basic source of Muslim religion and law.
In a report written for the 18th Law Commission of India as its member, I had recommended, inter alia, two legal reforms relevant to the matter under comment. The first of these was that the amendment of the Special Marriage Act 1954 made in this respect in 1976, referred to here, be undone and all persons availing its provisions be governed in matters of inheritance and wills by the Indian Succession Act of 1925. My second recommendation was that a provision should be made in the said Act of 1925 for a voluntary declaration to be made by all persons, married or unmarried, that they want to be governed by this Act and not by their personal law in all matters of inheritance and wills.
The relief sought by the Kerala woman from the Supreme Court is genuine and fair. I hope the court, while deciding her case, will facilitate this much-needed reform, which will be very much in keeping with the times.
Tahir Mahmood is professor of law and former member, Law Commission of India. The views expressed are personal
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