S.69 Indian Succession Act | Kerala High Court Upholds Law On Automatic Revocation Of Christian Wills Upon Marriage

The Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar observed that the provision has a laudable object and that it is not unfair, unfavourable or prejudicial merely because of non-applicability to Hindus.

The Court was considering three connected petitions, including a suo motu civil reference to examine the validity of the provision. Considering the grounds challenging the provision, it framed two questions to be answered: (i) Whether Section 69 is violative of Fundamental Rights for being restrictive in its application to Christians, Parsis and Jews? (ii) Whether Section 69 is in conflict with Section 20 of the Act?

Both the questions were answered in the negative. The Court observed that there was a clear legislative intent to not make the provision applicable to Hindus and went on examine the reasoning behind it.

Clear legislative intent to not make provision applicable to Hindus

At the outset, the Court examined the applicability of Indian Succession Act (ISA) to Hindus. It noted that intestate succession is governed by the Hindu Succession Act (HSA), 1956 and that with respect to wills, certain provisions of the ISA that are mentioned in Schedule III, would be applicable.

It was also noted Section 69 ISA [Revocation of will by testator's marriage] is not included in Schedule III and therefore, has no applicability to Hindus. Moreover, in Section 57 [Application of certain provisions of Part to a class of Wills made by Hindus, etc.] also, it is made clear that marriage does not revoke a will or codicil made by Hindus.

Next, the Court referred to Section 70 ISA [Revocation of unprivileged Will or codicil] providing for the circumstances in which will or codicil may be revoked, including by marriage. It was noted that this provision is included in Schedule III with a specific modification that the revocation by marriage is not applicable to Hindus.

The Court observed that the legislative intent was clear: the provision on automatic revocation of Will upon marriage would not be applicable to Hindus.

Intent behind the provision

The Court took note of the fact that the provision was adapted from the English Wills Act, 1837 and summarized the intent behind it:

“the framers of the provision perceived the fact that, in the life of an individual, marriage creates a fundamental change in his life, circumstances and approach. New duties and obligations spring up. A fundamental change in the familial set up happens; priorities change. There is an ordinary presumption that he would not adhere to the Will if any, he had previously executed. Therefore, there was a wholesome purpose underlying such provision.”

Reason for making provision inapplicable to Hindus

The Court examined the Statement of Objects and Reasons to the Hindu Wills Act that was published in the Gazette of India dated 02.10.1869. It noted that the same provided the reason for not making the corresponding provision in the erstwhile Indian Succession Act not applicable to Hindus:

“the legislature noticed that the concept of Will was practically foreign to Hindu law. Further, they had due regard to the societal set up and practices which were then prevalent. They were very cautious in interfering with the then existing custom and sentiments of the people. A reader would be curious as to why such a provision,…which apparently has a benevolent object/purpose viz. the protection of a newly formed family, was not made applicable to Hindus…the legislature had due consideration of the fact that, polygamy was prevalent in the community and hence a marriage may not create such a change in the testator's mindset that he would not choose to adhere to a Will previously executed by him.”

The Court also considered the reason for not making the provision applicable to Hindus after polygamy was done away with with the enactment of the Hindu Marriage Act, 1955. It observed that Hindu law continued to secure the rights of a married woman with her being entitled to maintenance from husband and his assets upon marriage as per Section 18(1) of the Hindu Adoption and Maintenance Act.

Noting that there is no corresponding provision applicable to Christians, it was observed:

“The Divorce Act enables a claim for maintenance only upon a proceeding in relation to the marriage. As was noticed earlier, the object underlying Section 69 is to protect the new family. The Hindu Adoption and Maintenance Act sufficiently takes care of the same. This further fortifies our view regarding intelligible differentia and reasonableness of classification. Conspicuously there is no similar personal law for Christians imposing such obligation.”

Section 69 is constitutionally valid

The Court remarked that the presumption of constitutionality does not apply ipso facto in the present case since the law in question was pre-constitutional. One of the challenges to the provision was that there is arbitrariness in its application to Hindus and Christians.

Referring to various Apex Court decisions, the Court opined that the section stands the twin tests as per Article 14 since there was a valid reason for differential application of the provision to Hindus and Christians.

“The mere fact that the statutory provision containing a laudable object as noted, was not extended to Hindus, by itself, shall not be a ground to hold it as violative of Article 14 of the Constitution…the object underlying Section 69 is to protect the new family. The Hindu Adoption and Maintenance Act sufficiently takes care of the same…Conspicuously there is no similar personal law for Christians imposing such obligation. Therefore, we find reasonableness in the classification and nexus with the object to be achieved, to over-rule the challenge against the provision as violative of Article 14 of the Constitution.”

It was added that the provision does not violate Article 15 of the Constitution since there is no “discrimination”, unfair or unfavourable treatment.

Comparison with Section 118 ISA which was struck down

The challengers of the provision also relied on the decision in John Vallamattom v. Union of India that struck down Section 118 ISA to say that Section 69 was also liable to be struck down on similar grounds.

Section 118 states that a man having a nephew or niece or any nearer relative shall not have power to bequeath any property to religious or charitable uses, except by a Will executed not less than 12 months before his death. The provision was struck down as unreasonable and arbitrary with no rationale behind it.

The Court observed that while Section 118 totally curtailed the right of a testator to bequeath the property, that is not the case with Section 69:

“The testator is free to execute bequest in respect of his property anytime. Therefore, there is no curtailment of his rights…Section 69 does not in any manner impinge the testamentary capacity of a person.”

No conflict between Section 20 and Section 69

One of the contentions raised to challenge Section 69 was that it was in direct conflict with Section 20, which states that no person shall, by marriage, acquire any interest in his/her spouse's property or become incapable to do any act in respect of his or her own property which he/she could have done if not married.

However, the Court was of the opinion that there is no conflict:

“Section 69 does not provide for creating any interest in the property consequent on the marriage nor does it restrict the power of disposal of the spouse. The effect of Section 69 is only that any disposition prior to marriage will stand revoked and, if not otherwise dealt with, his assets would devolve on the new family on his demise. It is only a spes successionis for the new family, who would be his legal heirs.”

Counsel for the petitioner in OP(C) No. 903 of 2026/ the respondents in WP(C) No. 27213 of 2017: K. Shaj, Beena N. Kartha, Arun Chand, Bharat Vijay P., Kevin James, Akash Joshi, Minu V.A., Gopika Gopal, Archana P.P., Ren Shibu, Shehroon Patel A.K., Issac Melvin B.O., Alvin Joseph, Riya Philo Johnson, Gishma P. S., Sajie Shankar, Mary Helen A. G., Sajju S., Renjith George, Varsha K.A., Nikhil Krishna A.S., Joel Kennath Johnson, Febin Fathima, Ishma T.B., Monsu Joseph George

Counsel for the petitioner in WP(C) No. 27213 of 2017: Varghese C.Kuriakose, P.J. Jose, Seenu Sadique

Counsel for the respondents in CR No. 1 of 2025: T. Krishnanunni (Sr.), K.S. Bharathan, Nivedhitha Prem V., Thareeq Anver K., Meena.A., Vinod Ravindranath, M.R. Mini, Ameera Jojo, Mariya Joseph, Ananthakrishnan A. Kartha, Anish Antony Anathazhath, Stephen V. Thomas, Resmi G. Nair - Spl. Government Pleader