Your Advocate
This week your advocate is Barrister Omar Khan Joy of the Supreme Court of Bangladesh and Head of 'The Legal Counsel'. His professional interests include commercial law, corporate law, family law, land law, constitutional law, banking law, arbitration and intellectual property laws. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.
Reader's query
I am Hindu and my wife is Muslim. We got married under the Special Marriage Act and we practice our own religion at home. What I would like to know is whether I will get my inheritance once my parents pass and also whether my wife can claim my inheritance if I die? I will be looking forward to your response.
A.K.M
Lalmatia
Response
I would like to thank you very much for asking me to provide legal opinion regarding matters relating to inheritance of property and marriage under the Special Marriage Act.
Upon receipt of your query, we have understood that you are a Hindu whereas your wife is a Muslim. You got married under the Special Marriage Act 1872 and now practice your respective religions at home.
In the light of the aforesaid facts and circumstances, I would like to elaborate the following legal provisions for your understanding. Though I recognise that you have no query so far as the marriage is concerned, it is expedient to clarify your concept with regard to the same so that you are not in the dark. It is particularly important when the number of cross religious marriage is increasing in recent days.
Marriage is a social and legal union of a man and a woman in order to live together and often to have child. So far as marriage is concerned different laws are applicable for the followers of different religions in Bangladesh. The provisions of Muslim law regarding marriage are applied to the Muslims and the provisions of marriage under Hindu Law are applicable to the Hindus. The Special Marriage Act is enacted to legalize cross religion marriages. But the 1872 Act is applicable only for certain special types of marriages. It is clearly mentioned in section 2 of the said Act of 1872 that this Act will be applicable only in two circumstances: (1) where neither of the bride or the bridegroom belongs to the Christian, Jewish, Hindu, Muslim, Parsi, Buddhist, Sikh or Jaina religion, OR (2) where each of the parties professes Hindu, Buddhist, Sikh or Jaina Religion. This is very important to note that under the first situation if none of the boy or girl belongs to any of the aforesaid religions, then they are practically becoming 'Nastik'/ atheist. And under the second situation, both the boy and the girl must belong to any of the four stated religions, where Islam is not mentioned. Consequently, the Special Marriage Act does not at all permit marriages between Hindu and Muslim keeping their religion intact! So, the marriage cannot be treated as a legal one in its current form. Further, it is strictly and very clearly prohibited for a Muslim woman to marry a non-Muslim under the Muslim Law. Your wife is a Muslim and being a Muslim woman she cannot marry, unless she changes her religion to Hindu or become an atheist. In Bangladesh, it is not possible to convert to Hinduism. So, the only way is to become atheist.
Now the obvious question is, if the Act does not permit such marriage how could you get married under the Act! At the time of marriage under the Special Marriage Act, 1872 both the parties have to sign two separate 'Declaration Forms'. In both the Forms it is mentioned that neither of the parties professes the Christian, Jewish, Hindu, Muslim, Parsi, Buddhist, Sikh or Jaina Religion OR each of the parties professes Hindu, Buddhist, Sikh or Jaina religion. By signing the Declaration Form they are ratifying the points mentioned in the Form and also the fact that the mentioned information is true. So when you have signed the declaration, both of you have declared yourself as non-believer. I think you have not properly read or understood the declaration forms. Or you might have been misguided! Though you have said that both of you are performing your own religions even after getting married under the Special Marriage Act, as per record of your declaration none of you are the followers of any religion.
I understand that it is not a very pleasant matter for you to appreciate. But, it is sad to state that this is the real position. The Special Marriage Act was enacted in 1872 and is in real need of amendment to allow Hindu-Muslim marriages. For example, the Act has been amended in India and it is lawful in India to register a Hindu-Muslim marriage. The need for amendment is long overdue. By way of this writing, I also press for the amendment of the Act. But, however backdated the law is, this still represents the Bangladeshi legal position regarding Hindu-Muslim marriage and honestly speaking we cannot but accept it until and unless the law is amended accordingly.
Only for the sake of argument, if we assume that you are still a Hindu and your wife is a Muslim then the inheritance matter will be as follows: It is clearly mentioned in section 23 of the Special Marriage Act, 1872 that a person professing Hindu religion shall have the same rights with regard to any right of succession to any property as a person to whom the Caste Disabilities Removal Act, 1850 applies. The rule was different before the year of 1850. That time the persons were excluded from inheriting his parent's property because of conversion of religion and caste. But after 1850 when the Caste Disabilities Act was enacted, the provision of exclusion from inheriting property due to conversion of religion and caste was removed. Now, under Hindu Law no one is deprived from inheriting property due to conversion of religion and caste. So, being a Hindu male you are entitled to inherit your father's property after his death.
If your wife is still considered to be a Muslim, then her marriage will be termed as an 'irregular marriage' under the Muslim law. Irregular marriages can be regularized only if the irregularity is made good, i.e. if you convert to Islam. Then your wife will have inheritance right over your property under the Muslim Law. Otherwise, she will not be so entitled. If, one the other hand, we accept the real position that you have sacrificed your religions and both have become non-believer then both of you will have inheritance rights under the Succession Act.
I agree that I might have made you extremely dissatisfied and unhappy with my response, but alas this is the real legal picture. I urge all the prospective bride and bridegroom who are professing Hindu and Muslim religion to be aware of the actual legal situation before they get married. I also further press for the need to amend the law without any delay to meet the demand of time and changing society.
For detailed query contact omar@legalcounselbd.com.
