New Delhi: The Delhi High Court has upheld the constitutional validity of a provision of the Hindu Marriage Act which prohibits marriages between people who are related to each other through ancestors from their parents’ side unless their custom allows them to do so.
‘Sapinda’ relationship extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned who is to be counted as the first generation. The Hindu marriage law prohibits Sapinda unions.
A bench of Acting Chief Justice Manmohan and Justice Manmeet PS Arora said, “If the choice of a partner in a marriage is left unregulated incestuous relationship may gain legitimacy.” The high court said there was no merit in the challenge to Section 5(V) (conditions for a Hindu marriage) of the Hindu Marriage Act as raised in the petition filed by a woman.
Section 5(V) of the HMA states that a marriage may be solemnised between any two Hindus, if the parties are not sapindas of each other, unless the custom or usage governing each of them permits a marriage between the two.
The woman was aggrieved by a family court’s judgment declaring that the marriage between her and her distant cousin was solemnised in contravention of the provision of the Act and was held null and void.
She had challenged the trial court judgment before the high court but her appeal was dismissed. She then moved a petition in the high court challenging the constitutional validity of the provision banning Sapinda marriages.
The petitioner said the competent courts have returned a finding of fact that both the woman and the man fell within the prohibited category of sapinda as recognised under Section 5(V) of the HMA and therefore their marriage was null and void.
The courts also held that the petitioner was unable to prove the existence of a custom or usage of marriage within sapinda relationships in their community.
The bench said no tenable grounds in law for challenging the provision have been placed before the court and added that the petitioner has failed to plead any legal grounds for challenging the restriction imposed by the provision.
“The impugned sub-section enacts that no marriage can be solemnised between parties who are related to each other as sapindas, unless such marriage is sanctioned by usage or custom governing the parties. The custom which permits marriage between persons who are sapindas of each other must fulfil the requirements of proof of a valid and existing custom as envisaged in impugned Section and under Section 3 (a) of the HMA Act, which defines the expressions ‘custom’ and ‘usage’,” the high court said.
The court said it was unable to accept the contention of the petitioner that the provision is violative of Article 14 (equality before law) of the Constitution as the exception in the section is only for marriages between persons on the basis of custom having force of law, which requires stringent proof and its existence is to be adjudicated upon by court of law.
“The petitioner was unable to prove the existence of custom in the facts of her case and has relied upon consent of parents which cannot take the place of custom,” it said.