Special Marriage: Effect on Family Property and Succession

Marriage under the Special Marriage Act has consequences beyond the marriage itself. Chapter IV deals with two of them: the effect on a party's membership of a Hindu, Buddhist, Sikh or Jaina joint family, and the law that governs succession to the property of the spouses and their children. The general rule is severance from the joint family and succession under the Indian Succession Act, 1925, but section 21A makes an important exception where both parties are Hindus, Buddhists, Sikhs or Jains. This note covers sections 19 to 21.

1. The Three Rules

Figure 1: Sections 19, 20 and 21

• Section 19. The marriage under the Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion is deemed to effect his severance from that family.
• Effect of severance. The member ceases to be a member of the joint family and coparcenary, and becomes entitled to his share as on a severance of status. The section carries forward s.22 of the 1872 Act.
• Section 20. Subject to s.19, a person married under the Act has the same rights and disabilities in regard to succession to any property as a person to whom the Caste Disabilities Removal Act, 1850 applies.
• Meaning of s.20. The 1850 Act prevents forfeiture of rights of inheritance by reason of renouncing religion or losing caste. So a party does not lose inheritance rights merely because of the special marriage.

2. Succession: Section 21

• Text. Notwithstanding any restrictions in the Indian Succession Act, 1925 on its application to certain communities, succession to the property of any person married under the Act, and to the property of the issue of such marriage, is regulated by the Indian Succession Act.
• Parsi chapter omitted. For this purpose, the Indian Succession Act applies as if Chapter III of Part V, the special rules for Parsi intestates, were omitted, so the general rules of intestacy apply to all.
• Displaces personal law. Section 21 overrides the personal law of succession, whether Hindu, Muslim or Parsi, that would otherwise apply. It covers the spouses and their children.
• Testamentary succession. The parties may make wills under the Indian Succession Act; s.21 governs both testate and intestate succession.

Figure 2: Surviving spouse's share on intestacy under the Indian Succession Act

3. The Exception: Section 21A

• When both are Hindu, Buddhist, Sikh or Jain. Section 21A, inserted in 1963, provides that ss.19 and 21, and so much of s.20 as creates a disability, do not apply. There is no severance, and succession follows the Hindu Succession Act (Topic 9)
• Mixed marriages. Where one party is Hindu, Buddhist, Sikh or Jain and the other is not, ss.19 to 21 apply in full.
• Registered marriages. A marriage registered under Chapter III is deemed solemnized under the Act, so the same rules apply to it (Topic 7)

4. Frequently Asked Questions

Does a Hindu who marries a Christian under the Special Marriage Act lose his share in the joint family?

He does not lose his share, but he is severed from the joint family under s.19 and becomes entitled to his share as on a partition. Succession to his property, and to that of his children, is then governed by the Indian Succession Act under s.21.

Which law governs succession when two Muslims marry under the Special Marriage Act?

The Indian Succession Act, under s.21, not Muslim personal law. Section 21A applies only where both parties are Hindus, Buddhists, Sikhs or Jains, so it does not help Muslim spouses.

What share does a surviving spouse take when a party to a special marriage dies intestate?

Under the Indian Succession Act, which s.21 applies, the surviving spouse takes one-third where the deceased left lineal descendants, one-half where there are no lineal descendants but other kindred, and the whole estate where there is no kindred.

What is the purpose of section 20?

It gives a person married under the Act the same rights and disabilities regarding succession as a person to whom the Caste Disabilities Removal Act, 1850 applies. That Act prevents forfeiture of inheritance on account of renouncing religion or losing caste, so the special marriage does not by itself take away inheritance rights.

5. Related Topics

• Topic 9: Section 21A: Marriage between Two Hindus. The exception in detail.
• Topic 7: Registration of Other Marriages. Registered marriages and succession.