SPECIAL MARRIAGE ACT
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Context: About 30 years after having performed their nikah in accordance with Islamic traditions, a Muslim couple from Kerala made the decision to have their marriage legally recognised under the Special Marriage Act (SMA).
Details
- The couple decided to register their marriage under the Special Marriage Act (SMA) to allow their daughters to inherit their parent's property under the Indian Succession Act, 1925 and to allow the secular principles of the Act to apply to inheritance issues in their family.
Rule of Inheritance in Islam
- The Muslim Personal Law (Shariat) Application Act, of 1937 regulates inheritance among Muslims in India. Sharers and residuary are the two types of legal heirs recognised by this Shariah-compliant law.
- 12 categories of legal heirs are entitled to a portion of the inheritance: (1) Husband, (2) Wife, (3) Daughter, (4) Daughter of a Son (or Son's Son, 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.
- Aunts, uncles, nieces, nephews, and other distant relatives might be residuary heirs.
- In Quran:
- Inheritance laws for both direct and indirect heirs are given in the Quran. "For males, there is a share in what their parents and close relatives leave, and for women, there is a share in what their parents and close relatives leave, whether it is little or lot," the statement reads. These are compulsory shares.
- Generally accepted rules:
- Daughters receive half of a son's portion of the property, according to the widely agreed-upon Islamic laws.
- For example, if a son inherits a plot of 200 metres from his father, then the daughter gets a plot of 100 metres or half the value of the 200-metre plot.
- In Marriage:
- In Islam, the male is expected to support his family financially and take care of his parents after marriage.
- If the marriage has children, the woman inherits an eighth of the husband's property in the event of his premature death. If not, she is entitled to one-fourth.
- Close relatives:
- For paternal uncles, aunts, and other blood relatives, there is also a share. If they are still living, the same goes for grandparents. If the son dies before them and leaves children behind, each parent receives a sixth of the property.
The issue in the Kerala Couple Case
- The Kerala couple has 3 daughters and no sons.
- According to the Quran, if there are only two or more females left, the daughters can only get two-thirds of their father's property. The mother and paternal blood relations receive the remaining portions.
Options available with the Couple
- If a couple wants the property to stay in the family, they have alternatives under Islamic law.
- Option 1: The first choice is to create a will, or vasiyat, in which a person can specify that a certain heir will only get up to one-third of the estate following his death.
- This is commonly done when one child is not financially stable, has special needs, or has given more of themselves to their parents than the other children. Such a clause may be applied, for instance, if two children live overseas and one stays behind to care for ageing parents.
- During the Partition, when many families split apart, many Muslim families made use of this option. As some children crossed the border into Pakistan, others stayed with their parents.
- Option 2: There is also the principle of virasat in addition to vasiyat. Hiba, a choice under virasat or inheritance, permits the unrestricted wealth transfer or property to a person while the donor is still alive.
- Hiba clauses can be applied in the instance of the Keralan couple, to transfer all property to the daughters' names while the parents remained alive.
Way Forward
- The process for solemnising a new marriage and registering an existing marriage is similar. The couples must have resided in the marriage officer's area for at least thirty days, and the marriage officer provides a 30-day notice period for objections.
- After a marriage is registered under the SMA, the couple is then subject to secular law, and the Indian Succession Act governs inheritance.
- The Special Marriage Act has long been used as a shelter for people who want to break religious regulations. The Special Marriage Act was established with this objective in mind
Special Marriage Act
Uniform Civil Code
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PRACTICE QUESTION Q. The Special Marriage Act (SMA) 1954, offers a framework for marriage between persons from other castes or religions. Do you believe it's time to adopt the Universal Civil Code in relation to marriage, divorce, and inheritance to ensure overall gender equality regardless of religion? |
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