The Effect on the Joint Family and on Succession

So sections 19 and 20 pull in opposite directions on purpose. Section 19 severs him from the joint family; section 20 stops that being read as a general forfeiture of his rights of succession.

Section 21: succession under the Indian Succession Act

Section 21 provides that notwithstanding any restrictions in the Indian Succession Act 1925 about its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act, and to the property of the issue of such a marriage, shall be regulated by that Act; and for the purposes of this Act the Indian Succession Act has effect as if Chapter III of Part V, the special rules for Parsi intestates, had been omitted.

Two consequences, and both are examinable.

The Hindu Succession Act is displaced. A Hindu married under this Act does not have his estate distributed by Class I and Class II heirs, agnates and cognates. It goes by the general rules of intestate succession in the Indian Succession Act 1925, which are quite different: they work by degrees of kindred, and the widow's share and the treatment of parents and collaterals do not match.

It reaches the children too. The words are "and to the property of the issue of such marriage". So a son of the marriage is also governed by the Indian Succession Act, whatever his own religion or marriage.

Section 21A: the exception that swallows most of the rule

Section 21A, inserted by the Marriage Laws (Amendment) Act 1976, provides that where the marriage under this Act is of a person who professes the Hindu, Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion:

• section 19 shall not apply;
• section 21 shall not apply; and
• so much of section 20 as creates a disability shall also not apply.

So where both parties belong to those four communities, marrying under this Act costs them nothing. The Hindu is not severed from his joint family. His succession stays with the Hindu Succession Act. He is under no disability.

Why the exception was made

The reason is worth a sentence in an answer because it explains the shape of the law. By the 1970s the Special Marriage Act was being used by two kinds of couple: those marrying across religions, for whom it was the only Act available, and two Hindus who simply preferred a civil ceremony, often across caste, or without their families' religious rites. There was no reason to punish the second kind by severing them from their families and changing their law of succession, and section 21A stopped it.

How to apply it

The question is always the same and has two steps.

Step one: are both parties Hindu, Buddhist, Sikh or Jain?

• If yes, section 21A applies. No severance, Hindu Succession Act continues, no disability. The marriage is under this Act for every other purpose, including divorce.
• If no, sections 19, 20 and 21 apply in full. If the Hindu party was a member of an undivided family, the marriage severs him from it, and succession to his property and to his children's property goes to the Indian Succession Act 1925.

Step two, only if section 21A does not apply: was the Hindu party a member of an undivided family? Section 19 severs only a member of such a family. A Hindu who was already separate loses nothing under section 19, though section 21 still moves his succession.

A worked example makes it stick. A Hindu man who is a coparcener marries a Christian woman under this Act: he is severed from the coparcenary on the day of the marriage, and when he dies his estate goes by the Indian Succession Act. The same man marries a Jain woman under the same Act on the same day: nothing happens to his coparcenary interest and the Hindu Succession Act still governs his estate.

A worked example

Two cases. In the first, Anil, a Hindu coparcener, marries Farida, a Muslim, under the Act. In the second, Anil marries Meena, a Hindu, under the Act because they want a civil ceremony.

Anil and Farida. Section 19: the marriage of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance from that family. It happens automatically, by the marriage, with no deed and no declaration.

What of his rights generally? Section 20: a person married under the Act shall have the same rights and be subject to the same disabilities in regard to the right of succession to any property as a person to whom the Caste Disabilities Removal Act 1850 applies. The point is that the marriage is not treated as a general forfeiture.

And succession to his property? Section 21: notwithstanding anything in the Indian Succession Act 1925, succession to the property of a person married under the Act, and to the property of the issue of such a marriage, is regulated by that Act, with the Parsi intestate succession provisions omitted.

So he leaves the Hindu Succession Act behind. Yes, on these facts.

Anil and Meena. Section 21A, inserted in 1976: where the marriage is between two persons who both profess the Hindu, Buddhist, Sikh or Jaina religion, section 19 and section 21 shall not apply, and so much of section 20 as creates a disability shall also not apply.

So what happens to Meena and Anil? Nothing. He is not severed, and succession stays under the Hindu Succession Act.

Why does the exception exist? Because the original Chapter IV penalised two Hindus for choosing a civil ceremony, and section 21A removed that penalty.

What is left of the rule? It bites only where at least one party is outside those four religions, which is the inter-faith case the Act was written for.

What it does NOT mean

Section 19 is not a partition. It is a deemed severance of status, which measures his share; the division follows separately.

It does not require any act by him. The marriage itself effects it.

It does not apply to every member of a family. Only to a member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion.

Section 20 is not a forfeiture provision. It borrows the Caste Disabilities Removal Act 1850 so that the marriage is not treated as a forfeiture.

Section 21 does not apply the whole Indian Succession Act. The provisions relating to Parsi intestate succession are omitted.

Section 21A is not a saving for one section. It disapplies s.19 and s.21 entirely and the disability half of s.20.

And it is not available to every couple. Both parties must profess the Hindu, Buddhist, Sikh or Jaina religion.

Quick revision

• s.19: the marriage of a member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion is deemed to effect his severance from that family, automatically.
• s.20: such a person has the same rights and disabilities in regard to succession as a person to whom the Caste Disabilities Removal Act 1850 applies, so the marriage is not a general forfeiture.
• s.21: succession to his property, and to the property of the issue of the marriage, is regulated by the Indian Succession Act 1925, the Parsi intestate succession provisions being omitted.
• s.21A, inserted 1976: where both parties profess the Hindu, Buddhist, Sikh or Jaina religion, ss.19 and 21 do not apply, nor does so much of s.20 as creates a disability.
• The result: Chapter IV now bites only where at least one party is outside those four religions.

Test yourself

1. What does section 19 do? It provides that the marriage solemnized under the Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance from such family. No deed or declaration is needed; the marriage itself severs him.

2. What does section 21 change? Succession to the property of a person whose marriage is solemnized under the Act, and to the property of the issue of such a marriage, is regulated by the Indian Succession Act 1925 instead of by the personal law, save that the provisions of that Act relating to Parsi intestate succession are omitted.

3. What does section 21A provide? That where the marriage solemnized under the Act is between two persons who both profess the Hindu, Buddhist, Sikh or Jaina religion, sections 19 and 21 shall not apply, and so much of section 20 as creates a disability shall also not apply.

4. Why does section 21A matter? Because before it was inserted in 1976, two Hindus who chose a civil ceremony were severed from their joint family and taken out of the Hindu Succession Act, which penalised the use of the secular Act. Section 21A removed that penalty and confined the effect of Chapter IV to marriages where at least one party is outside those four religions.