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Polity & Governance
Mahesh

27/01/24 07:03 AM IST

Incestuous ‘sapinda’ marriages

In News
  • Delhi High Court  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 — “unless the custom or usage governing each of them permits of a marriage between the two”.
Sapinda marriage
  • A sapinda marriage is one between individuals who are related to each other within a certain degree of closeness. Sapinda relationships for the purposes of the HMA are defined in Section 3 of the Act.
  • Two persons are said to be sapindas of each other if one is a lineal ascendant of the other within 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,” Section 3(f)(ii) says.
  • 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’ grandparent, and anyone who shares this ancestry within five generations.
  • 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.
Exceptions
  • The definition of the word “custom” is provided in Section 3(a) of the HMA. It states that a custom has to 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”.
  • A custom may not be protected even after these conditions are fulfilled. The rule in question must be “certain and not unreasonable or opposed to public policy” and, “in the case of a rule [that is] applicable only to a family”, it should not have been “discontinued by the family”.
Background of the case
  • In 2007, the woman’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.
  • 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.
  • She argued 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 the marriage had received the consent of both families, which proved the legitimacy of the marriage.
Sapinda marriage around the world
  • In several European countries, the laws on relationships that are considered incestuous are less stringent than in India.
  • In France, the crime of incest was abolished under the Penal Code of 1810, so long as the marriage was between consenting adults.
  • This Code was enacted under Napoleon Bonaparte, and was also enforced in Belgium. A new Penal Code was introduced in Belgium in 1867 to replace the French code, but incest remains legal.
  • Portuguese law also does not criminalise incest.
  • The Republic of Ireland recognised same-sex marriages in 2015, but the law on incest has not been updated to include individuals in same-sex relationships.
  • Under Italian law, incest is a crime only if it causes a “public scandal”.
  • In the United States, incestuous marriages are banned in all 50 states, though incestuous relationships between consenting adults are allowed in New Jersey and Rhode Island.
Source- Indian Express

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