Context:
Recently, the Delhi High Court rejected a challenge to the constitutionality of Section 5(v) of the Hindu Marriage Act, 1955 (HMA), which prohibits marriage between Hindus if they are “sapindas” of each other.
Why Delhi HC Has Banned Sapinda Marriages?
- About the Case:
-
- 2007: The woman’s marriage was declared void after her husband successfully proved that they had entered into a sapinda marriage.
- 2023: This ruling was challenged before the Delhi HC, which dismissed the appeal in October 2023.
- The woman then approached the HC again, challenging the constitutional validity of the prohibition on sapinda marriages.
- Constitutional Validity: The petitioner contested Section 5(v) of the Hindu Marriage Act, arguing that it violates the right to equality guaranteed under Article 14 of the Constitution.
- She argued that sapinda marriages are prevalent even when there is no proof of custom.
Delhi High Court Ruling:
- The Delhi High Court dismissed the petitioner’s arguments, stating that she failed to provide sufficient evidence of an established custom to justify a sapinda marriage.
- The court also held that the choice of a partner in a marriage can be subject to regulation and found no legal grounds to support the claim that the prohibition on sapinda marriages violates the right to equality.
|
What is Sapinda Marriage?
- A sapinda marriage is one between individuals who are related to each other within a certain degree of closeness.
- Under the HMA, marriage is prohibited within certain generations on both the mother’s and father’s sides.
- Mother’s Side: Marriage is forbidden within three generations.
- Sibling (first generation), their parents (second generation), their grandparents (third generation)
- Father’s Side: It extends to five generations.
- This prohibition would extend up to their grandparents’ grandparent,
- Sapinda relationships for the purposes of the HMA are defined in Section 3 of the Act.
Enroll now for UPSC Online Course
Prohibition Criteria
- Marriage Voidance
-
- If a marriage violates Section 5(v) of the HMA by being a sapinda marriage without an established custom permitting it, it is deemed void.
- This means the marriage is considered invalid and treated as if it never occurred.
Exception to Prohibition
- The Hindu Marriage Act (HMA) provides an exception to the prohibition against sapinda marriages.
- This exception applies when the customs of each individual involved permit such marriages.
- Criteria for Custom
- According to Section 3(a) of the HMA, a custom must be continuously and uniformly observed for an extended period to gain legitimacy.
- It should have the force of law among Hindus in a local area, tribe, group, or family.
- Conditions for Valid Custom
- For a custom to be valid, it must be certain, not unreasonable, and in line with public policy. Additionally, if the custom applies only to a specific family, it should not have been discontinued by that family.
Similar to Sapinda Marriages in Other Countries
- Europe: In several European countries, laws regarding incestuous relationships are less strict than in India.
- France: Abolished the crime of incest under the Penal Code of 1810, allowing marriages between consenting adults.
- Belgium: Adopted similar laws under the influence of the French code.
- Portugal: It does not criminalise incest.
- Italy: Incest is only considered a crime if it causes a “public scandal.”
- United States: Incestuous marriages are prohibited in all 50 states. However, relationships between consenting adults are permitted in New Jersey and Rhode Island.
Note:
- Incestuous: An incestuous relationship is one involving sexual intercourse between two members of the same family.
|
Also Read: Supreme Court Verdict On Same Sex Marriage In India
News Source: The Indian Express
January 27, 2024
