Ramyata Dass
India is a diverse country having a rich cultural and religious background. Each community has customs and laws of their own. The current article deals with a segment of family law which talks about marriage and its prohibitions particularly in the Hindu law. The modern Hindu law by a series of interpretations and modifications by the courts over a period of time has gone through a lot of changes.
The reason for this observation is that Hindus and Muslims are the only community who have claimed their laws to originate from the divine. Here comes the role of customs in personal laws. Customs are traditions or beliefs that are passed down within a group which holds a significant value to the members of the community and has emerged from the past.
An important aspect of custom in Hindu law is that if a custom is proved or shown to have prevalence then in matters where a statute explicitly does not govern it, the custom will prevail. Marriage under the Hindu law has been considered as a sacrament for a very long time which means it was considered as absolute and unbending.
This sacrament character of marriage has been overridden by the modern Hindu law i.e. by the Hindu Marriage Act, 1995 (hereon referred as the HMA). This codifies law permits divorce as it recognizes marriage. Although for a valid marriage under the HMA, there are certain prohibitions which need to be complied with the peculiar Hindu notions of consanguinity and caste.
Sagotra and Sapravara marriages were also prohibited. The commentators on Manu smriti have examined the word sagotra and inferred it as sapravara. There was an extension of this rule during the Suta period and gone penances were specified for the commission of the sin of Sagotra marriage.
In his Dharma-Sutra, Baudhayana declares that a Sagotra woman should be relinquished as far as sexual life is concerned, but that she should be kept safe and protected as a mother. Medhatithi, Manu’s first great commentator, deals thoroughly with the subject, while Mitakshara takes the same rigid view of sagotra marriages and maintains that these marriages are totally void.
Although in modern Hindu law all these prohibitions have been done away with and now any two Hindus can marry. The HMA recognizes prohibitions on the basis of blood relationships called sapinda relationship. Under this modern Hindu law this prohibition exists up to five degrees on paternal side and three degrees on maternal side.
The other restriction is based on the degrees of prohibited relationship. Two Hindus if they come under such degrees of relationship cannot marry each other. But there is an exception to such prohibition that, if the customs permit such marriage then such prohibition will not apply.
MEANING OF SAPINDA RELATIONSHIP
Sapinda relationships are the ones that extend through generation such as father, grandfather, great-grand-father etc. The two schools of law i.e. Mitakshara and Dayabhaga both give two different definitions to this term. Mitakshara observes sapinda as a person connected by the same particles of body. This is called Vijnaneswara’s (particles of the same body) Theory.
Whereas under Dayabhaga sapinda means a person who is connected by the same pinda. Pinda is the ball of rice or funeral cake which is offered at the Shraddha ceremony. This theory is called Jimutavahana (oblation) Theory.
In the case of Harihar Prasad v. Balmiki Prasad, it was held that a valid custom should be formed by clear and unambiguous proof, it is only by means of such evidence that the courts can be certain of their presence and that they should have the status of antiquity and legal certainty. Sapinda Marriages shall be liable for penalty under Section 18(b) of the Act for simple imprisonment which may be extended to one month or for a fine which may be extended to one thousand or both.
MEANING OF DEGREES OF PROHIBITED RELATIONSHIP
There are some relationships in Hindu marriage in which marriage cannot be formally recognized; those relationships are referred to as degrees of prohibited relationship. The key objective of this prohibition is to discourage incestuous marriages including marriages between people of forbidden relations, such as brothers and sisters, children and grandchildren, etc.
Although if there are parties entering into such marital relations prove that there existed a custom which validates their marriage then such marriage cannot be considered as void. In the case of Kamani Devi v. Kameshwar Singh, AIR 1946, Patna 316; it was laid that the obligation of maintenance of wife would still continue even if the marriage was held void.
PROVISIONS IN CONNECTION WITH THE DEGREES OF PROHIBITED RELATIONSHIP
Under the HMA, 1955 the degrees of prohibited relationships are stated in section 3 (g). It states that two persons are said to be within the degrees of prohibited relationship if:-
- If one is a lineal ascendant of the other; or
- If one was the wife or husband of a lineal ascendant or descendant of the other; or
- If one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other; or
- If the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters.
The above list also includes the following:
- Relations tied to by full blood or half-blood/ uterine blood
- Both legitimate and illegitimate blood relations
- Relations created by way of adoption as well as blood.
LINEAL DESCENDANT: Lineal ascendant or descendant means someone who is directly related to a person, such as a person’s father, mother, grandparents, and so on. Anyone such as nephew or an uncle is regarded as a collateral descendant.
UTERINE BLOOD: Uterine marriages, in legal terminology, mean a relationship between two or more persons from the same mother. Again such marriages can be concluded if customs can be proved.
PROHIBITIONS FOR:
A BOY CANNOT MARRY HIS-
- Mother
- Grandmother
- Daughter-in-law
- Grand-daughter in law.
A GIRL CANNOT MARRY HER-
- Father
- Grandfather
- Son in law
- Son’s daughter husband.
A BOY CANNOT MARRY WIFE OF HIS-
- Brother
- Father’s brother
- Mother’s brother
- Grandfather’s brother
- Grandmother’s brother
A BOY CANNOT MARRY HIS-
- Sister;
- Brother’s daughter;
- Sister’s daughter;
- Sister of his father;
- Sister of his mother;
- Daughter of his father’s sister;
- Daughter of his father’s brother;
- Daughter of mother’s sister
- Daughter of his mother’s brother
A GIRL CANNOT MARRY-
- Her brother
- Her brother;
- Her father’s brother;
- Her mother’s brother;
- Son of her brother;
- Son of her sister;
- Son of her father’s brother;
- Son of her father’s sister;
- Son of her mother’s brother;
- Son of her mother’s sister;
In Shakuntala Devi vs Amar Nath, AIR 1982 P H 221; the Punjab and Haryana High Court held that two persons can marry within the prohibited relationship but there should be a proof of established custom i.e. very old and beyond human memory.
In Balusami Reddiar vs Balakrishna Reddiar, AIR 1957 Mad 97; it was also held that the custom must not be against public policy and morality.
In i, (1970) 2 MLJ 477; it was held by the Madras High Court that the custom needs to be established inductively. The time period and the number of instances required to show a custom existing would depend and differ based on facts of each case.
Further, In Savitri Devi v. Manorama Bai, AIR 1998 MP 114; the Madhya Pradesh High Court in the year 1998 clarified that the party depending on the custom must prove the existence of such custom. Additionally, it should also be proved that such custom was ancient, certain, reasonable and not opposed to public policy.
If a custom is indecent or immoral or if it is inconsistent with the practices of good men it will be declared null and void. For example; there are customs prevailing in the Northern India among the Jats of Punjab which allows a marriage between a man and his brother’s widow although such relation falls within the degree of prohibited marriage.
The same way in Southern India, marriage between a man and his sister’s daughter is recognized as an age old custom and thereby valid. In certain parts of Maharashtra, a custom prevails which allows a marriage between a girl and her father’s sister’s son. In Andhra Pradesh a man can marry her sister’s daughter.
Although in the absence of such customs a marriage performed within the degrees of prohibited relation will be considered void ab initio under section 11 of the HMA, 1955. The court of law on a petition by either party to the marriage can declare such marriage to be void. Such violation is liable for imprisonment or fine or both as provided under section 18(b).
CONCLUSION
The two critical factors of a Hindu marriage are the Sapinda relationship and degrees of prohibited relationship. The marriages between individuals in these relationships were regulated by Mitakshara and Dayabhaga in the ancient Hindu law, but there was divergence between these two commentaries.
This had acquired significant improvements in Hindu law after the implementation of the Hindu Marriage Act in 1955 and eliminated the difference between these two commentaries and prohibits marriages between individuals within this relationship.
Minattur, J. (2006). Indian Legal System. 2nd ed.
THE HINDU MARRIAGE ACT, 1955.S. 5(iv) & (v)
Raj, A. (2020). SAPINDA RELATIONSHIP AND DEGREES OF PROHIBITED RELATIONSHIP
THE HINDU MARRIAGE ACT, 1955.S. 3 (g)
www.legalservicesindia.com. (n.d.). Hindu Marriage Act