Prohibition on Sapinda Marriage | 31 Jan 2024

Source: IE

Why in News?

Recently, the Delhi High Court in the case of Neetu Grover v. Union of India & Ors, 2024 has rejected a challenge to the constitutionality of Section 5(v) of the Hindu Marriage Act, 1955 (HMA), which prohibits marriage between two Hindus if they are “Sapindas” of each other.

• A sapinda marriage involves individuals who share a specific degree of familial closeness.

Why Was the Law Challenged, and What Was the Court's Ruling?

• Arguments of Petitioner:
  • In 2007, the petitioner's marriage was declared void after her husband successfully proved that they had entered into a sapinda marriage, and that the woman was not from a community where such marriages could be considered a custom.
  • The petitioner challenged the constitutional validity of the prohibition on sapinda marriages, arguing that sapinda marriages are prevalent even when there is no proof of custom.
  • Hence, Section 5(v) which prohibits sapinda marriages unless there is an established custom, violates the right to equality under Article 14 of the Constitution.
    • The petitioner also argued that if the marriage had received the consent of both families, which proved the legitimacy of the marriage.
• Delhi Court’s Order:
  • The Delhi High Court found no merit in her arguments, holding that the petitioner did not provide “stringent proof” of an established custom, which is necessary to justify a sapinda marriage.
  • The court held that the choice of a partner in a marriage can be subject to regulation. With this in mind, the court held that the petitioner did not present any “cogent legal ground” to show that the prohibition against sapinda marriages was violative of the right to equality.

What is a Sapinda Marriage?

• About:
  • A sapinda marriage is one between individuals who are related to each other within a certain degree of closeness.
  • Sapinda marriages are defined under Section 3 of the HMA, as two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other in the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them.
• Lineal Ascendant:
  • Under the provisions of the HMA, on the mother’s side, a Hindu individual cannot marry anyone who is within three generations of them in the “line of ascent”. On the father’s side, this prohibition applies to anyone within five generations of the individual.
  • In practice, this means that on their mother’s side, an individual cannot marry their sibling (first generation), their parents (second generation), their grandparents (third generation), or an individual who shares this ancestry within three generations.
  • On their father’s side, this prohibition would extend up to their grandparents’ grandparents, and anyone who shares this ancestry within five generations.

• Section 5(v) of HMA 1955:
  • If a marriage is found to violate Section 5(v) for being a sapinda marriage, and there is no established custom that allows such a practice, it will be declared void.
  • This would mean that the marriage was invalid from the very beginning, and will be treated as though it never took place.

What are the Exceptions to the Prohibitions Against Sapinda Marriages?

• The exception is mentioned in Section 5(v) of the Hindu Marriage Act, 1955 and it states that if the customs of the individuals involved permit sapinda marriages, then such marriages would not be declared void.
• In other words, if there is an established custom within the community, tribe, group, or family that allows sapinda marriages, and if this custom is continuously and uniformly observed for a long time, it can be considered a valid exception to the prohibition.
  • The definition of "custom" is provided in Section 3(a) of the HMA, stating that a custom must be continuously and uniformly observed for a long time and should have gained enough legitimacy among Hindus in a local area, tribe, group, or family, such that it has obtained "the force of law."
• However, certain conditions must be met for a custom to be considered valid. The rule in question must be "certain and not unreasonable or opposed to public policy," and in the case of a rule applicable only to a family, it should not have been "discontinued by the family."
  • If these conditions are satisfied, and there is a valid custom permitting sapinda marriages, the marriage would not be declared void under Section 5(v) of the HMA.

Are Marriages Similar to Sapinda Marriages Allowed in Other Countries?

• France and Belgium:
  • In France and Belgium, the crime of incest was abolished under the Penal Code of 1810, allowing marriages between consenting adults.
    • Incest is the crime of sexual relations or marriage taking place between a male and female who are closely linked by blood.
  • Belgium maintained this legal stance even after introducing a new Penal Code in 1867.
• Portugal:
  • Portuguese law does not criminalise incest, implying that marriages between close relatives may not be prohibited.
• Republic of Ireland:
  • While the Republic of Ireland recognised same-sex marriages in 2015, the law on incest has not been updated to explicitly include individuals in same-sex relationships.
• Italy:
  • In Italy, incest is considered a crime only if it causes a "public scandal," suggesting that the legal framework takes into account certain circumstances.
• United States:
  • In the United States, incestuous marriages are generally banned in all 50 states. However, there are variations in laws related to incestuous relationships between consenting adults.
    • For example, New Jersey and Rhode Island allow such relationships under certain conditions.

Conclusion

• The concept of Sapinda marriages, as regulated by the HMA, reflects an effort to preserve familial and social harmony by prohibiting unions within certain lineal ascendants. The law includes provisions that declare marriages void if they violate these restrictions unless there is a well-established custom permitting such marriages.
• Internationally, various countries have different legal stances on incestuous relationships and marriages, showcasing the diversity of legal approaches to issues of personal choice and family relationships.