A Muslim couple in Kerala is remarrying under the Special Marriage Act to ensure their inheritance is passed down to their daughters as per civil law. Why are they taking this step? How do Muslim inheritance laws work in India? Why can’t the couple make a will in favour of their daughters? How are they circumventing this law? Is this a novel approach?
Shukkur Vakeel, a lawyer and actor, and his wife Sheena, a former Pro-Vice Chancellor of Mahatma Gandhi University, were married in 1994 according to religious laws. Almost three decades later, they registered their marriage under the secular Special Marriage Act. Why? The couple wants to ensure that only their three daughters can be their legal heirs as per civil law, and they want to avoid splitting their inheritance under the Shariat legal code.
So, how do Muslim inheritance laws work?
Muslim inheritance laws in India are governed by the Muslim Personal Law (Shariat) Application Act of 1937. This legislation outlines two types of legal heirs – sharers and residuary, and twelve categories of legal heirs are entitled to a share of the inheritance. For instance, if a husband has lineal descendants, his wife is entitled to 1/8th of his property after his death. Without lineal descendants, she is entitled to a 1/4th share. However, daughters cannot inherit more than half of what their sons receive. The remaining inheritance can be claimed by residuary heirs such as aunts, uncles, nieces, nephews, and other distant relatives.
The Kerala Muslim couple cannot make a will in favour of their daughters because, under Shariat law, only 1/3 of the estate can be willed in favour of anyone. The remaining will still have to be divided per the complex religious law, which means that a Muslim couple cannot make someone their sole heir under the religious law.
To get around this legal obstacle, Shukkur and Sheena officially registered their marriage under the Special Marriage Act. According to Section 15 of the SMA, any marriage that does not conform to the regulations of the Special Marriage Act can be registered under this Act. The process for registering an existing marriage is the same as for solemnizing a new one. Both parties must have been residing in the district of the Marriage Officer for at least thirty days, and the Marriage Officer must give a 30-day notice to allow for any objections. By registering their marriage under the SMA, the couple would be governed by secular law, and the Indian Succession Act would apply in inheritance matters.
It’s not uncommon for people to use the Special Marriage Act to avoid religious laws, and in fact, this was the very reason for enacting the act. For instance, among Christians, divorce was only allowed in exceptional circumstances. The Indian Divorce Act of 1869, which governs divorce for Christians, recognized adultery as the sole grounds for divorce until the law was amended in 2001. Section 10 of the act mandated that a Christian wife must prove that her husband had committed “incestuous adultery” or “adultery coupled with cruelty or desertion” to seek a divorce. The Indian Divorce (Amendment) Act, 2001, was subsequently passed, which introduced additional grounds for dissolving a marriage. Until then, many Christian couples seeking divorce would opt to register their marriage under the Special Marriage Act and then initiate divorce proceedings under civil law.
In the case of Shukkur and Sheena, registering their marriage under the Special Marriage Act is a novel approach, but it is a way for them to ensure that their daughters are their legal heirs. It is a bold step that challenges religious laws and advocates gender equality. As the world celebrates International Women’s Day, this story of a couple fighting for their daughters’ rights reminds them that women’s empowerment still has a long way to go.
