Mary Roy vs the State of Kerala, (1984)--Application of the Indian Succession Act (1925)

Application of the Indian Succession Act (1925) in the State of Kerala.
The discriminatory provisions of both the Travancore and the Cochin Christian Succession
Acts (1916) and (1921) were challenged by Mary Roy as a violation of Article 14 of the
Indian Constitution which lays down equality for everyone. She was provoked to move the
court when she suffered harassment and humiliation at the hands of her own brothers who
hired goondas to evacuate her from their father’s cottage in Ooty along with her children.
She refused to vacate as she did not have any other place to go. It was then that she came
face to face with the gender discriminatory Travancore Christian Succession Act (1916)
which tried to strip her of the inheritance right in the intestate property of her father and then
there was no tuning back. Mary Roy was determined to give it a legal fight to restore her
constitutional right to equality. Her petition, Mary Roy vs the State of Kerala, (1984),
contended that no religious groups, sect or denomination should be allowed to claim
protection of its own personal law against the constitutional guarantee of sexual equality and
that such discriminatory law should be declared invalid. The petition further stated that, the
Indian Succession Act (1925) should be extended to the state of Kerala, so that a widow will
get one-third as her share from the intestate property of the deceased husband, and the
remaining property will be equally divided among sons and daughters (Jacob 1986).
As reported by Champappilly (1994), after a lengthy legal battle, the Supreme Court of
India, in 1986, took the view that by virtue of Section 626 of the Part B States (Laws) Act,
1951, the Travancore Christian Succession Act (1916) stood repealed from the appointed
day under the Part B States (Laws) Act, i.e., April 1, 1951. Hence, it reasoned, the law
applicable to intestate succession among Christians of Travancore area of the State of Kerala
was the Indian Succession Act, 1925, with Retrospective Effect from April 1, 1951.
Following this decision, the High Court of Kerala ruled that the Cochin Christian Succession
26 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would stand repealed and the inclusion of the Indian Succession Act, 1925 in the schedule to that Act
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Act, 1921 also stood repealed by Part B States (Laws) Act, 1951. Though these courts did
not expressly give retrospective effect to the judgments, the mere declaration that the
Travancore and Cochin Acts stood repealed on April 1, 1951, gave these judgments
retrospective effect overturning the then existing law and practice among the Travancore-
Cochin Christians.
These decisions had another impact. Under the Travancore-Cochin Acts, probating of
Wills27 was not mandatory applicable to the Travancore-Cochin Christians. But under
Section 213 of the Indian Succession Act (1925), it became mandatory for the Christians to
get their wills probated. Therefore, as a consequence of the decision, family settlement deeds
based on wills that were not probated have suddenly become invalid in view of the
application of Section 213 with effect from April 1, 1951. In the case of intestate succession,
partitions or family settlements made in accordance with the provisions of the Travancore
Act also became defective. Such documents, now, cannot be used as securities for financial
transactions, and further, daughters (sisters) who were excluded from the share (under the
provisions of the Travancore or Cochin Acts) can now reopen the matter both for genuine
and mala fide reasons (Champappilly 1994).
The judgment in the case of Mary Roy versus the State of Kerala (1986) brought about
a turning point in the inheritance rights of the Christian women of Kerala. According to the
new law, a widow receives one-third of the total assets as her share of her husband’s
property, and the remaining two-thirds are equally divided among the children of the
deceased with no sex difference. If a man dies without a wife and children, his property
devolved on his father. In the absence of the father, his mother, brothers, and sisters receive
an equal share (Jacob 1986).
Christians in Kerala, by and large, welcomed the decision of the Supreme Court with
certain reservations. The Church, legislature and press created a hue and cry after the apex
court’s judgment, fearing that Courts all over the State would be swamped with litigations
claiming women’s inheritance rights with retrospective effect. They feared that this could
27 A probate means a copy of the Will, certified under the seal of a competent Court with a grant of administration of the
estate to the executor of the testator. It is the official evidence of an executor's authority. Executor is the legal
representative for all purposes of a deceased person (testator) and all the property of a testator vests in him(legal service
India.com 2009)
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eventually trigger off property disputes among the affluent Syrian Christian community and
then the community will be in peril. The Catholic community was in a predicament about the
reaction of the nuns who were not given any dowry but wedded to the Church who might
turn around to claim their share. Moreover, since the judgment carried a retrospective effect
from 1 April 1951, transaction in the form of streedhan could not disentitle women from
demanding a share. Transactions involving sale of property, land mortgage and bank security
were put under scanner due to the impending legal impediments. However, in the midst of
all this, a faction of prominent Syrian Christian community had cashed in on the judgment to
make gain. Some of the litigation prima facie indicated that they were filed in collusion
between brothers and sisters so as to evade repayment of huge loans taken from banks by
mortgaging landed-property (Thulaseedharan 2004).
Mr. Thampan Thomas, former member of Parliament from Kerala, was supportive
towards the Supreme Court’s decision and forwarded a non-official bill in the Lok Sabha to
consolidate and to amend the law applicable to the intestate succession of the Indian
Christians. The Bill sought to provide equal shares to both sons and daughters and also
suggested that the daughter could get the share as dowry on her marriage, if it is so desired.
However, there were some concern expressed with regard to the retrospective effect of the
judgment. All Kerala Catholic Women’s Organisation had called upon the Government to
implement the Indian Succession Act from 1986 onwards only (as cited in Champappilly
1994). Mr. P.J. Kurian, a former cabinet minister from Kerala, had also proposed a bill in
the Lok Sabha to do away with the retrospective effect of the Supreme Court‘s decision,
which went unnoticed. The Kerala Government had applied for a review of the retrospective
nature of the share of the property due to the administrative difficulties and social tensions
likely to be generated by upsetting land transactions of the past. According to Jacob 1986,
The Supreme Court, however, dismissed the petition on the basis that the ground for review
lacked substance.
On the other end, the new piece of legislation could hardly create any dent in the
inheritance rights of the Christian women. The members of the community seemed to be less
concerned about the prosperity which the judgment had conferred on women. The few
litigations which were filed in the subsequent years (after 1986), indicated the attitude of the
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community. On the contrary, there was more vigilance among the male members while
disposing off the intestate property. Very often, they obtained the consent of
sisters/daughters and got their signature as a proof of relinquishing their right over the share
so that the male could continue to be the custodian of the property. In addition, women’s
claim on the share is with regard to the intestate property where there is no written Will
regarding the succession of the property. So the tendency now-a-days is to make a Will for
the whole property and the problem of intestate succession seldom arises in Christian
families. Thulaseedharan (2004) observed that women too prefer to get their assets in the
form of cash at the time of marriage rather than wait for long years to get a share in the
intestate property.
The Supreme Court’s decision is undoubtedly a milestone in the matter of intestate
succession as far as the Christian women of Kerala are concerned. However, the law alone
will not bring about any effective change as the desire for reform should come from within
the community. Supporting the view of Thulaseedharan (2004), researcher also feels that the
Government, on its part, has never been keen to make any attempt to prepare the ground for
such reforms. It has always preferred to avoid any controversial legislation which could
prove to be politically inconvenient. The Church, the government and the judiciary were
equally guilty of keeping silent in this matter before 1986 and only women like Mary Roy
who were capable of challenging their rights and who could come out of the hierarchy of the
Church resorted to Court action. Are there Syrian Christian women like Mary Roy who
would go forward to challenge the patriarchal system to ensure their inheritance right when
they are meted out with injustice and gender discrimination