Context: A challenge to the constitutionality of Section 5(v) of the Hindu Marriage Act, 1955 (HMA), was rejected by the Delhi High Court (Neetu Grover vs Union of India Ors.).The Section 5(v) of the HMA 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.
Grounds on which the Section 5(v) of HMA was challenged:
- In 2007, a marriage was declared void because it was found to be violative of the Section and hence, was proved to be a Sapinda or Incestuous Marriage.
- Also, the woman did not belong to a community where such marriages could be considered a custom.
- This was challenged before the Delhi High Court, and the appeal was dismissed in October 2023.
- Appeal was again made before the High Court, which challenged the constitutional validity of the prohibition of Sapinda marriages.
- Arguments were made that Sapinda marriages are prevalent even if there is no proof of custom.
- Section 5(v) prohibiting such marriages unless there is an established custom, violated Article 14, the right to equality.
- Also, the argument was made that the marriage did receive the consent of both families and therefore, is legitimate.
Delhi High Court’s stand:
- The Court held that ‘an established custom’, is necessary to justify a Sapinda marriage.
- The High Court also held that the ‘choice of a partner in a marriage can be subject to regulation’ as unregulated choices in marriage may lead to the legitimacy of incestuous relationships.
What are Incestuous ‘Sapinda’ Marriages?
- These are between individuals who are related to each other within a certain degree of closeness.
- Under Section 3 of the Hindu Marriage Act of 1955, ‘Sapinda Marriages’ are defined.
- As per this section, “two persons are 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.”
- A Hindu individual, on the mother’s side, cannot marry anyone who is within three generations of them in the ‘line of ascent’. This means, on 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.
- And on the father’s side, the prohibition applies to anyone within five generations of the individual. This means, on the father's side, this prohibition would extend up to their grandparents’ grandparents, and anyone who shares this ancestry within five generations.
- A marriage will be declared void, if it is found to be violative of Section 5(v) for being a Sapinda or Incestuous Marriage and if there is no established custom that allows such a practice. Such marriage will be considered invalid from the very beginning and treated as it never took place.
Exceptions to the prohibition against Sapinda Marriage:
- There is only one exception, which can be found within the same provision, i.e., Section 3(a) of the HMA. This section provides definition for the word ‘Custom’.
- 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’.
- However, a custom shall not be protected from prohibition even after these conditions are fulfilled.
- The custom must be ‘certain and not unreasonable or opposed to the public policy’ and ‘in case of a rule applicable only to a family’, it should not have been ‘discontinued by the family’.
Legality of Marriages similar to ‘Sapinda marriages’ in other countries:
- The laws on relationships that are considered incestuous are less stringent in several European countries, than in India.
- Penal Code of 1810, France: It was enacted by Napoleon Bonaparte and was also enforced in Belgium.
- The crime of incest was abolished under the Penal Code of 1810, so long as the marriage was between consenting adults.
- A new Penal Code was introduced in Belgium in 1867 to replace the French code, but incest remains legal.
- Incest is also not criminalised under Portuguese law.
- Incest is considered a crime under Italian law, only if it causes a ‘public scandal’.
- In all the 50 states in the United States, incestuous marriages are banned. Although, incestuous relationships are allowed between consenting adults in New Jersey and Rhode Island.
Conclusion:
The Delhi High Court highlighted the intricate balance between individual choice in a marriage and the boundaries set by law and also the societal norms. This balance becomes important, in the context of marriages within extended family networks.