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FAMILY LAW II PROJECT

EVOLUTION OF CHRISTIAN
SUCCESSION LAWS IN INDIA

Submitted by:
SHARIKA.R

973

VIth Semester

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TABLE OF CONTENTS
TOPIC PAGE

Introduction 3

Law of Succession in Kerala 4

Law of Succession in Goa, Daman & Diu 8

Law of Succession in Pondicherry 10

Law of Succession in North-East India 11

Development in British India 14

Mary Roy Case Analysis 17

Conclusion 19

Bibliography 20

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1. INTRODUCTION

Christianity was brought to Travancore by St. Thomas the Apostle of Jesus Christ. The high
caste Namboodiri families were converted to Christianity but continued their Hindu customs and
practices. It is with the advent of Portuguese and the British, Canon laws were applied to the
Christians in India after bringing the converted St. Thomas Christians into the fold of Rome, the
headquarters of Roman Catholic Church. The source of Cannon Law can be traced to Bible.

The Book of Genesis speaks of the bondage of marriage between husband and wife. Wife is
given superior status in Genesis. The man shall leave his father and his mother. This passage
refers in fact to the married couple becoming one flesh. However this religious concept was
distorted to mean that a woman’s legal existence merges with that of her husband by marriage
and it became a common law rule of coverture under which a woman becomes a non-entity. She
cannot own property after marriage. So a patriarchal society came into existence and it spread
across the world through Cannon law and the Church.

The family law of Christians in India has not received adequate attention from the legal
fraternity. The legal literature on this subject remains scanty and scattered. In this project
submission, my present attempt is to trace the evolution of the Christian law of succession by
arranging the sources in a logical manner and critically analyse the existing legal provisions.

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2. EVOLUTION OF CHRISTIAN LAW OF
SUCCESSION IN KERALA
With the decision in Mary Roy, the Indian Succession Act, 1925 has become the law of
succession applicable to the greatest majority of Christians in India. The immediate impact of the
judgement has been felt only in Travancore and Cochin. Earlier, the Travancore Christians were
governed by the provisions of the Travancore Christian Succession Act, 1916 and the Cochin
Christians were governed by the provisions of the Cochin Christian Succession Act, 1921.

Historical Background in Travancore & Cochin

In the early centuries the Syrian Christians of Travancore, Cochin and certain areas of Malabar
were said to have followed the Biblical law as laid down by Moses for the guidance of the
ancient Jews. Conversion of the Hindus to Christianity resulted in the gradual adoption of the
customary usages of the Hindus. According to the customary usages, Christian women whether
married or not were excluded from inheritance, even if they had no brothers and the property
devolved on male collaterals of the intestate. Thus, the parent's property passed over to males
belonging to a very remote degree of consanguinity and even in the transverse line. This system
of inheritance was disapproved by the Synod of Diamper in 1599 AD. This mode of succession
was declared to be contrary to natural equity and wholly unlawful and decreed that the property
must be equally distributed among sons and daughters.1 The mode of succession was one of the
chief customs which the Synod tried to change, but the community refused and continued to
follow their own customs in the matter of succession.

The Synod tried to change the customs, but the community refused to observe the decrees of the
Synod relating to the customary law on succession and they continued to follow their own
customs in the matter of succession. The practice of bequeathing ones property by means of a
Will, to a certain extent was in existence among the Syrian Christians of Travancore, for
centuries. The right of Christians to make Wills has always been recognised by the Courts in
Travancore and their Wills, no matter how made, have always been given effect to. In the midst

1
Dr. Scaria Zacharia, The Acts and Decrees of the Synod of Diamper, 1599 (1994)

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of the above, the Travancore Wills Regulation was enacted in 1899. It did not profess to repeal
any part of the personal law but only sought to supplement the personal law of those who did not
possess testamentary power, by empowering them to devise their property. No Will could take
effect unless it was registered, deposited or proved in a Probate Court.

The Syrian Christians in Cochin, like their counterparts in Travancore, followed their customary
law in matters of succession in earlier times. But the absence of a settled law of inheritance
proved a fertile source of litigation among Syrian Christians. In these circumstances, there were
several instances when the Chief Court of Cochin applied the Indian Succession Act, 1865 to the
Syrian Christians in the years 1879 and 1880. But there were also occasions when the Court
refused to follow the principles of the Indian Succession Act. Thus, the state of affairs in Cochin
remained most unsatisfactory. Also there was no statutory law applicable to Christians in the
matter of testamentary succession by execution of Wills in Cochin. Among the Syrian Christians
of Travancore and Cochin, in matters relating to the execution and enforcement of Wills and
adoption deeds, the Bishop and Prelates exercised powers

In Malabar, the British Indian Courts applied the peculiar laws and customs of the community
for determination of disputes from case to case. But when the Indian Succession Act, 1865 was
enacted, no exemption was granted to the Christians in Malabar and the Malabar Wills Act of
1898 was not made applicable to Christians. 9 Therefore, the Christians of Malabar came to be
governed by the provisions of the Indian Succession Act, 1865 and later by the Act of 1925 in
both intestate and testamentary succession.

During this time there was no properly organised system of administration of justice in these
areas. For the proper administration of justice in Travancore, Zilla Courts were established
in1811 A.D. The earliest decision which laid down the order of succession among Syrian
Christians of Travancore was made in 1868- “The order of succession among the native Syrian
Christians of this coast is as follows:- first sons, failing these daughters, failing these, brothers
and their children and lastly, sisters and their children”.

A High Court was established in Travancore in 1882. In 1906, the Travancore High Court
considered the customary law of succession among Christians and in the case of Geevarghese

5
Maria,2 as there was no specific rule to resolve the dispute, the Court decided the matter by
applying the provisions of the Indian Succession Act, 1865, which was not a law in force at that
time in Travancore.

Codification of the Laws

In these circumstances that the Christian community took the lead to get a Succession Act
enacted for them which was taken up by the Christians in the Sri Mulam Popular Assembly. His
Highness Government appointed a Committee in 1911, consisting of six members belonging to
different denominations of Christians. This Committee, called the Christian Committee, probed
into the customs and practices among various sections of the Christians in Travancore and even
Cochin and Malabar. The Committee submitted its report along with a draft of the proposed bill.
Therefore, intestate succession among Christians in Travancore was to be regulated by the
Travancore Christian Succession Act, 1916. As regards testamentary succession, their customary
law as modified by the Travancore Wills Regulation, 1899 was to prevail and the applicability of
the Indian Succession Act, 1865 was expressly ruled out by the Travancore Legislature. Later on,
His Highness the Maharaja of Cochin passed the Cochin Succession Act, 1921.

Under S. 24 of the Act, a widowed mother has only a life interest terminable at death or
remarriage, over any immovable property. Under S. 28 female heirs who had already received
their Streedhanam were not to be given any share in the case of intestacy because the daughters
have only a right to get Streedhanam and it was computed as one fourth of the share of a son or
Rs.5000/ whichever is less. Daughters could get shares in the intestate’s property only in the
absence of male heirs. Even the unmarried daughters had only a right to get Streedhanam. Thus,
the Travancore Act contained several provisions which could be described as discriminatory to
women.

In 1949, the former princely states of Travancore and Cochin merged to form the part-B state of
Travancore-Cochin within the Indian Union. Ordinances were promulgated for the peace and
good government of the United State. § 3 of the Ordinance provided for the existing laws of
Travancore to continue in force in the territory of Travancore and § 4 was to the same effect as
regards Cochin. Even the constitutional provision of Art.372 which permitted the continuance in

2
Geevarghese Maria v. Kochukurian Maria, 22 T.L.R. 205 (F.B)

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force of existing laws saved the Travancore Christian Succession Act, 1916 and the Cochin
Christian Succession Act, 1921. Thereafter, Parliament enacted the Part B States (Laws) Act,
1951. Section 3 of the Act provided for extending the enactments mentioned in the Schedule
thereto, to the Part B States. And Section 6, provided that any law in force in these States
corresponding to any of the Acts extended to Part B States, would stand repealed.

Repeal of the Laws

It was in this context, the question whether the Travancore Christian Succession Act stood
repealed was raised. The Christian Succession Acts (Repeal) Bill, 1958 was introduced in the
Legislative Assembly of the State of Kerala to repeal the Travancore Christian Succession Act,
1916 and the Cochin Christian Succession Act, 1921. But this Bill was not enacted into law and
it lapsed.

The Law Commission of Kerala submitted its report in 1968 with a recommendation to have a
new self-contained Bill modelled on the Central Act incorporating the necessary changes.3 It also
included a draft bill in the Report. But the Government did not act upon the recommendations of
the Law Commission of Kerala. Then the question of revision of the Indian Succession Act,
1925 and also the applicability of the Act to Travancore and Cochin was taken up by the Law
Commission of India on its own and submitted a Report,4 in 1985, and recommended to the
Central Government to take a decision to repeal or not to repeal the Travancore and Cochin
Christian Succession Acts. It was in these circumstances that the Supreme Court came up with its
epoch making decision in Mary Roy.5 The Supreme Court held that by virtue of the provisions of
the Part B States (Laws) Act, 1951, the Travancore Christian Succession Act of 1916 stood
repealed with effect from 1.4.1951. Following this decision, in V.M. Mathew v. Eliswa6the
Cochin Succession Act of 1921 was also held to be repealed by the Part B States (Laws) Act,
1951 and held that the parties were governed by the Indian Succession Act, 1925.

3
Law Commission of Kerala, Fourth Report, 1968
4
110th Report on Indian Succession Act
5
AIR 1986 SC 1011
6
1988 (1) KLT 310

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3. LAW OF SUCCESSION IN GOA, DAMAN & DIU

The Portuguese established their rule in Goa by 1510 A.D.7 Therein started the inflow of the
Portuguese concepts of law into that territory. By a decree passed in 1542 daughters were given a
claim on the movable properties of their farther followed by the 1559 and 1583 decrees which
entitled daughters who had converted to Catholic religion to inherit to their father’s property in
the absence of sons. By the year 1691, the Portuguese laws of succession were made applicable
in Goa.8

The Portuguese Civil Code of 1867 came to be enforced in Goa with effect from 1 st July 1870.
This remained a uniform civil code for more than a century, governing the juridical relations of
the citizens irrespective of their race, sex, caste or creed. After the liberalization of Goa in 1961,
the Indian Parliament enacted the Goa, Daman and Diu (Administration) Act, 1962 which
provided that: “All laws in force immediately before the appointed date in Goa, Daman and Diu,
shall continue to be in force therein until amended or repealed by a competent legislature or
other competent authority.”9 Since the Portuguese Civil Code contains references to “Portuguese
Citizens” it became necessary to issue a Citizenship Order 1962 and also Goa, Daman and Diu
(Administration) Removal of Difficulties Order, 1962 which provided that the words Portugal
and Portuguese shall be read as India and Indian.

The Portuguese Civil Code of 1867 still remains in force in Goa, Daman and Diu. The Indian
Succession Act 1925 has no application in these areas. § 29(2) permits ‘other laws for the time
being in force’ to be applied in favour of the said Act.

As regards succession there are two ways, one under a will and the other is legal succession. Any
person who is of sound mind and is not a minor of less than 14 years of age can execute a valid
will. Art. 1764 of the Code provides that a blind person or those who cannot read or write are not
allowed to make a closed Will. Wills in favour of guardian, instructors or school masters or any
person who exercise control the person making the will, at the time of making the will are

7
Vincent A Smith, The Oxford History of India (3rd ed.,1964)
8
Julian Saldanha, Conversion and Indian Civil Law (1981)
9
§ 5(1), Goa Daman and Diu (Administration) Act, 1962

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prohibited.10 An adulterous spouse cannot make a will in favour of the accomplice.11 The testator
can appoint one or more persons as executor or executors of the will.12 But minors cannot be
appointed as executors.13 A married woman cannot be appointed as executrix without
authorisation from her husband, except where she is judicially separated of person and
properties.14 When no time limit has been fixed by the will for execution, normally the executor
has to carry it out within one year from the date on which he has taken charge as an executor. If
he does not intend to act as executor, he has to give it up within three days from the date of
knowledge of the will, failing which he shall be liable for damages.15 No probate I required
under this Code.

The question of succession arises only in respect of the Legitimate or where there is intestacy, or
in the event of a will being annulled, revoked or lapses. Under the Civil Code such a succession
is termed as a legal succession. The legal succession shall devolve in the following order:

1. To the descendants;
2. To the ascendants subject to Art.1236;
3. To the brothers and their descendants;
4. To the living spouse;
5. To the collateral not included in (3) above up to the sixth degree;
6. To the State subject to Art.1663

The relatives closer in degree shall exclude, within each group, the more remote. 16 And the
relatives who are in the same degree shall inherit per capita, or in equal proportion.17 In
reckoning degree each generation is taken as a degree and in the direct line, the degrees are
counted by the number of generations, excluding the progenitor.18 The persons incapable of
acquiring property by Will shall also not acquire by legal succession.

10
Art. 1768, Portuguese Civil Code of 1867
11
Art. 1771, Portuguese Civil Code of 1867
12
Art. 1885, Portuguese Civil Code of 1867
13
Art. 1886, Portuguese Civil Code of 1867
14
Art. 1887, Portuguese Civil Code of 1867
15
Art. 1890, Portuguese Civil Code of 1867
16
Art. 1970, Portuguese Civil Code of 1867
17
Art. 1971, Portuguese Civil Code of 1867
18
Art. 1976, Portuguese Civil Code of 1867

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5. LAW OF SUCCESSION IN PONDICHERRY

The Christians of Pondicherry, who were converts from Hindus, observed the caste system and
followed the Hindu law even after their conversion. The establishment of the French rule did not
bring about any major change in these matters. The French Civil Code was extended to
Pondicherry in 1819 A.D. But it was provided that people of Indian origin would continue to be
governed by their laws and customs. This position continued under the French Constitution of
1946 and 1958. Thus, the Christians continued to be governed by the Hindu law, but in matters
of marriage and divorce and allied matters, they were brought under the French Code.19

The Treaty of Cession 1956 brought Pondicherry into the Indian Union. The people were then
given an option to declare themselves as Renoncents and continue to be governed by the French
Civil Code, but only a few Christians opted for it. The Pondicherry (Administration) Act 1962
provided for the continuance of the existing laws in force. Even under the Pondicherry
(Extension of Laws) Act 1968 neither the Indian Divorce Act 1869 nor the Indian Succession
Act 1925 were extended to Pondicherry. However, the Indian Succession Act was made
applicable by the Pondicherry Act X of 1980. Yet as provided in § 3 of the Act, it does not apply
to Renoncents. Even the Indian Christian Marriage Act, 1872 was made specifically inapplicable
to Renoncents. So Indian Christians in Pondicherry do not have a statutory law for divorce. As
such, it is not correct to assume that French Civil Code applies to all Christians in all matters in
Pondicherry. Even Christians who are not Renoncents continue to be governed by the Hindu
customary law. Thus different sets of laws are applicable to the Christians in Pondicherry. The
Christians of Pondicherry can be classified into 3 categories:

1. The Renoncents, who are French Nationals, to whom the French Code as amended from
time to time in France, applies.
2. The Renoncents, who are Indian Nationals, to whom the French Code applies as it stood
on 16th August, 1962.
3. The Indian Christians to whom the provisions of the Indian Christian Marriage Act, 1872
and the Indian Succession Act, 1925 apply, but in other matters the old Hindu law still
apply.

19
David Annoussamy, Pondicherry: Babel of Personal Laws (1972)

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6. LAW OF SUCCESSION GOVERNING CHRISTIANS
IN NORTH-EAST INDIA
The Indian Succession Act is not applicable to the Christians who are converts from the various
tribes such as the Khasis and Jaintias of the Khasi and Jaintia Hills; the Garos, the Nagas, the
Mizos, the Meiteis and a large number of other tribes.20 In North East India the British adopted a
policy of non- interference in the internal affairs of the frontier tribes so long as peace was not
disturbed, or its authority seriously threatened. Even its hill areas were excluded from the
purview of English law and a different administrative set up was adopted to maintain this
distinction. After the implementation of the Government of India Act, 1919, the Khasi leaders
felt the need for a Durbar following which the Khasi National Durbar was established, which
codified the traditional law on property of the Khasis.

At the time of independence the position of the 25 Khasi States was similar to that of all Princely
States. The Federation of Khasi States joined the Indian Union by signing the Standstill
Agreement and the Instrument of accession. Special provisions were made also made in the
Constitution in Articles 244 and 275 and in the 5th and 6th Schedules to the Constitution for
tribal autonomy in these States. District Councils and Regional Councils were conferred with the
legislative jurisdiction of the matters of succession, marriage and divorce. The tribal Christians
in these States still follow their customary laws. Their conversion to Christianity did not affect
their traditional laws.

The Khasi Law of Succession


The main divisions of the Khasi Tribes are: (l) The Khasis (2) The Synteng or Pnar (3) The War
(4) The Bhoi (5) The Lynngam.

The Khasi Christians follow the matrilineal system of inheritance and have taken special care to
preserve their customs. As such the right of inheritance to the property of the parents either
movable or immovable goes to women. In the Khasi tribe, the woman is the absolute owner of
the wealth or property and she alone has the right to transfer or alienate the property. On the
death of the mother, if there be no bar, the youngest daughter succeeds to the position of her

20
Kamaleswar Sinha, Meghalaya, Triumph of the Tribal Genius (1970)

11
mother. She becomes the caretaker and custodian of the ancestral property. When the elder
daughter gets married, as soon as possible, a new home is built for her and her husband. There is
clear segregation of the wealth and property of the father and the mother and any indiscriminate
mixing up and application of the incomes from the two sources is not permitted. The property in
the hands of Khasis can be classified as follows:

1. Ancestral property (Movables)


2. Self -acquired property
3. Wealth generated by male members before marriage
4. Ornaments and heirlooms
5. Ancestral landed property
6. Acquired landed property
7. Original house of the Kur (Clan)
8. Original house of a branch of a Kur (Clan)
9. Original house of a branch of the Kur (Clan) originating from a sister elder to Ka
Khadduh (the youngest sister)
10. Ornaments and heirlooms jointly owned and inseparable
11. The personal effects of the parents which must remain as part of Ka Nongtymmen
(ancestral property)
12. Khun Khadduh (Property of the youngest of the sister)

The Khasi law of property can be classified into three categories: (l) The General Law, (2)
Supplementary Laws and (3) Special Usages and Practices. The General Law specifies a variety
of matters. Under this, if the parents have only one daughter, she personally inherits all
ornaments, except those which form part of the ancestral property and the self-acquired property.
But if there is more than one daughter, then apart from the landed property and movable property
and self-acquired property merged with ancestral property, all the daughters may take equal
shares. Once movable property is apportioned it cannot be claimed back. The management of the
property will be done by the male members with the eldest as the head, in his incapacity, any
other male member. Converts to other religions shall lose all right to ancestral.
The Supplementary Laws are other subsidiary regulations which exist over and above the
general regulations. Under this, children cannot demand as of right property belonging to the

12
father before his marriage. When the elder sisters marry they must move out of mother’s house.
Here, the movable properties are divided first into parts equal to the number of sisters and one
part goes to the youngest sister. The remainder is divided again into the same number of parts
and one part is given again to the youngest sister. The sisters the take each of the remaining
shares. The mother’s house remains with the youngest sister who will also get her mother's
ornaments, as her personal property.
Special Usages and Practices includes laws of pynkam, which is a practice in Khasi families to
apportion the family property in favour of female members during the lifetime of the mother,
which then take effect after her death. It also provides for a kind of gift which is made to the
female members during the lifetime of the mother, usually as a marriage gift to the daughter.
Rap-iing is a mode of continuing possession of property within the Kur when there are no more
female issues of direct descent. A Will, which gives a person absolute right to alienate property,
finds no place under Khasi law.

The Garo Law of Succession


Among the Garos, the customary law of inheritance still prevails as they are exempted from the
applicability of the Indian Succession Act. The major tribes that constitute the Garos are: (l) The
Achhikrong (2) The Abeng (3) Kochunasindiya (4) The Kochu or Counch (5) The Nuniyas or
Dugol. The Nuniyas are said to be different from the other Garos and are admitted to be of the
highest rank.

The Garo society follows the matrilineal system.21 The inheritance is through mother and
restricted only to the female line. Men, under the Garo, law do not inherit property. Male
children cannot receive or claim any part of the property even if it is acquired by their own
efforts. The property acquired after the marriage by the husband becomes the property of his
wife though. In a family where parents have no daughter to inherit, the Chra (body of men
consisting of maternal uncles, brothers of the girl) and the Mahari (consists of relatives of a
person with their husbands and wives) have to search for an adopted daughter from same
motherhood. Also, on death of the wife, the widower cannot marry a woman of his own choice
except the one chosen by the Chra and the Mahari of the deceased.

21
Dr. O.L Snaitang, Christianity and Social Change in North-East India (1993)

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7. ORIGIN & DEVELOPMENT OF CHRISTIAN LAW
OF SUCCESSION IN BRITISH INDIA

Prior to the arrival of Westerners like the Portuguese, Christians in India had by and large been
following the traditions of their Hindu brethren. The Portuguese followed by the English tried to
being in Western concepts of law to be applied the Christians in India. Although their efforts
were not entirely successful, the English succeeded in injecting their concepts into the Christian
law by a slow process.

Paving the Way for Indian Succession Act 1865

It is necessary to examine the circumstances under which the Indian Succession Act, 1865 came
to be enacted.

When the British settled down to govern India, they found that there was no ascertainable law in
the matter of succession for communities other than Hindus and Muslims. To begin with, under
the Charter of 1661 the English East India Company was conferred with limited legislative
powers and broad powers to administer justice in the settlements.

There were no uniform or common lex loci to regulate inheritance, succession and other matters.
In civil cases, justice was administered according to the personal laws of Hindus and Muslims.22

In 1726 the Courts having Royal authority came to be established in India, with the Charter
providing for the establishment of the Mayor’s Courts in Presidency Towns.

22
M.P Jain, Outlines of Indian Legal History (5th ed., 1990)

14
Later in Warren Hasting’s Plan of 1772 by Article XXIII provided that: “in suits regarding
inheritance, marriage, caste and other religious usages and institutions, the laws of Koran, with
respect to Mohammedans, and those of the Shaster with respect to the Gentoos (Hindus) shall be
invariably adhered to.” But, the rule applied only to Hindus and Mohammedans. It was nowhere
mentioned as to what laws would be applied to other categories of persons like Parsis and
Christians

The 1781 Act of Settlement lay down that the Supreme Court established at Calcutta 23 had
jurisdiction over the inhabitants of Calcutta in all matters. At the same time, Hindus and Muslims
were to be governed by their personal laws.24 No law including the one that established the
Supreme Court had specifically provided for the laws to be applied to the other communities
including the Christians. To all those who were neither Hindus nor Muslims, English law came
to be applied.25

In 1827, the Elphinstone Code of Bombay Regulations came into force. In the Code a provision
was made for applying the ‘customs’ of the ‘country’ and the ‘law of the defendant’, which
phrases were not necessarily limited to Hindus and Muslims alone but covered all the various
classes of people.26

In these circumstances, on the basis of the Charter Act of 1833, the First Law Commission was
appointed in 1835. The commission considered the law applicable to non-Hindus and non-
Muslims and presented the draft of Lex Loci Act in 1841, which provided for the extension of
English law to India, but nothing in the Act was to apply to non-Christians in matters of
marriage, divorce or adoption. Serious objections were raised against the draft and the proposal
died by the efflux of time.27

23
Under Regulating Act 1773, a Supreme Court was established at Calcutta but the jurisdiction over the Indian was
vague.
24
§ 17 of the 1781 Act of Settlement
25
J.S Jebb v. C. Lefevere Morton, 161 (1826)
26
Supra 1
27
A part of Lex Loci Act was enacted as the Caste Disabilities Removal Act, 1850

15
Again under the Charter Act of 1853, the Second Law Commission was appointed in the same
year. The Commission arrived at the conclusion that what India wanted was a substantive civil
law, in preparing which the law of England should be used as a basis.

Then the Third Law Commission appointed in 1861 directed its attention to the preparation of
the draft of the law of succession and inheritance generally applicable to all classes of persons
other than the Hindus and Muslims. The first report containing draft of such laws was submitted
in 1863. The Bill was enacted into the law of India with little variations under the title of the
Indian Succession Act, 1865.

Transition to the Indian Succession Act of 1925

In Charlottee Abraham v. Francis Abraham28 it was held that a convert to Christianity could still
choose to be governed by the law of the community to which he earlier belonged.

In Kamawati v. Digbijai Singh29 it was held that it was not for a court to enter upon an
examination of the conduct of the intestate so as to the Indian Law of intestate succession getting
its full and proper application. The Act was applicable to Christians.

The Act of 1865 was revised and another Indian Succession Act, 1925 came to be enacted. But,
neither the Succession Act of 1865 not 1925 was to apply to Christians in the whole of India.

Under § 3 of the Indian Succession Act 1925, conferred powers to the State Government to
exempt any race, sect or tribe or any part of such race, sect or tribe from the operation of the Act,
by way of a notification in exercise of which the Native Christians in Mysore were exempted as
mentioned above. The Khasis and Jyentengs in the Khasi and Jaintia hills in the North-East were
also exempted. By virtue of provisions of Goa, Daman and Diu (Administration Act) 1962, it is
the Portuguese Civil Code and in Pondicherry it is the French Civil Code which applies.

28
(1862) 9 M.I.A 195
29
AIR1922 P.C. 14

16
8. MARY ROY CASE: CRITICAL APPRAISAL

30
With the decision in Mary Roy & Ors v. State of Kerala & Ors the status of Christian women
was changed overnight. However, relying on technical ground, the Supreme Court hesitated to
interfere with the personal law.

Facts:

Mary Roy was the youngest child of a Syrian Christian couple, who had four children. Mary had
already married out of the Syrian Christian community to a Bengali, and was not given
Streedhanam. Due to her marriage failing, Mrs. Roy had to leave her husband and settle in Ooty,
where her family owned a cottage. After her father’s death, Mrs. Roy had been forced out of her
Ooty home by her brother. Citing the Travancore Cristian Succession Act, they argued that since
their father had died intestate, she wasn’t entitled to any share of the property under section 28. 31
After years of lobbying for the Indian Succession Act to be valid in the Travancore region, Mrs.
Roy finally decided to go to court to fight the oppressive bill. Represented by Indra Jaising,
sections 24,32 28, 2933 of the said Act were challenged on the grounds that they were violative of
Article 14 of the Indian Constitution.34

Issues:

a. What was the impact of the extension of the Indian Succession Act, 1925 to the territories of
the State of Travancore-Cochin on the continuance of the Travancore Christian Succession Act?

b. Did the introduction of the Indian Succession Act, 1925 have the effect of repealing the
Travancore Christian Succession Act?

c. Are sections 24, 28, 29 violative of the equality doctrine?

Reasoning:

30
AIR 1986 SC 1011
31
Male heirs entitled to whole of the intestate’s property divided equally among themselves
32
Widow/mother has only life interest terminable at death or remarriage
33
Certain other female heirs will inherit only in the absence of male heirs in the respective groups.
34
Karundeep Singh, Mary Roy v. State of Kerala, The World Journal on Juristic Polity (2016)

17
The judgment was delivered by Justice Bhagwati. The Court reasoned that when § 6 of Part B
States (Laws) Act, 1951 provided in clear and unequivocal terms that the Travancore Christian
Succession Act which was a law force in Part B States of Travancore-Cochin corresponding to
Chapter II of Part V of the Indian Succession Act, 1925 shall stand repealed, it would be nothing
short of subversion of the legislative intent to hold that the Travancore Christian Succession Act,
1092 did not stand repealed but was saved by Section 29 Sub-section (2) of the Indian
Succession Act, 1925.

Judgement:
The Travancore Christian Succession Act stands wholly repealed on the extension of Indian
Succession Act, 1925 to Part B State of Travancore-Cochin by the Part B States (Laws) Act,
1951 and the Travancore Christian Succession Act will not be saved by § 29(2) of the Indian
Succession Act, 1925. Hence in matters of intestate succession to property of Indian Christians
of former State of Travancore, Chapter II of Part V of the Indian Succession Act, 1925 would
apply. On this view it becomes an unnecessary and futile exercise to consider whether § 24, 28
and 29 of the Travancore Christian Succession Act are unconstitutional and void.

Impact of Mary Roy Case:

The decision in Mary Roy was criticised by the church and the local community for its
affirmation of the retrospectively clause since a sharp increase in litigation was expected. The
retrospectively clause was defended by Mrs Mary Roy herself, she argued that ‘the taking away
of the retrospectively clause would deny justice to the many poor Christian women whose fathers
had died without leaving a will.’ The other criticism came from the women’s rights activists,
who criticised the judgement for not delving in the constitutional aspect of the case. The felt that
Court took the easy way out, by deciding the case on the reasoning that TCS is in violation of
Part B states (law) amendment act and totally ignored the gender justice aspect to it. Prior to this
decision, the Indian Succession Act, 1925 applied only to 34% of Indian Christian population.
But the decision brought another 30% of Christian population within the ambit of the 1925 Act.35

35
Dr. Sebastian Champappilly, Christian Law of Succession in India (1st ed., 1997)

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9. TOWARDS A UNIFIED CODE- the conclusion

The laws relating to succession among Christians in India present a disparate picture. Even with
the advent of the Indian Succession Act into the scenario, in many regions the existing laws are
retained. Even when the statute law was imposed it was without having proper regard for the
existing laws and customary rules. The laws applicable to women in fact do not conform to any
uniform platform. Apparent discriminative provisions against the women still continue to exist.

The need for reforming the laws of marriage, divorce and succession was being felt by the
members of the Christian community for the last several years. Yet no serious attempts were
made towards legislations, discussions, debates, Commission Reports and Private Member’s
Bills notwithstanding. It was the case of Mary Roy which propelled the community and started a
strong movement towards legislative reforms.

A Private Member’s Bill- the Christian Succession Bill, 1986 was introduced in the Lok Sabha.
This Bill was almost a verbatim reproduction of Part V of the Indian Succession Act, 1925. So
quite obviously, its provisions did not reflect any current thinking. By 1990, along with the
proposals for reform of the law of marriage and divorce, the matters relating to succession,
adoption, maintenance were also taken up by the Social Activists and others. Thus the Indian
Succession Amendment Bill, 1990 and the Christian Adoptions and Maintenance Bill, 1990 were
drawn up after deliberations among various groups of Christians. The Bills were submitted to the
Government on 11th February 1992. But the Executive and the Legislature remained
unresponsive to these demands. The State Government of Kerala also formulated a Bill- the
Travancore and Cochin Christian Succession (Revival and Validation) Bill, 1994. The official
bill was also sent to the President for his prior approval. But the Bill was returned to the State
Government by the Centre. The legislative attempts in these matters have not yet fructified.

The need of the hour is to appoint a Committee consisting of Christians representing the various
systems and sub-systems of different regions of India to probe into the feasibility of unifying the
Christian law.

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10. BIBLIOGRAPHY

 Dr. Sebastian Champappilly, Christian Law of Succession in India

 G.V.C Subbarao, Family Law in India

 Paras Diwan, Family Law

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