Recently, the Delhi High Court rejected a challenge to the constitutionality of Section 5(v) of the Hindu Marriage Act, 1955 (HMA), which prohibits Sapinda marriage between two Hindus.

Section 5(v) of the Hindu Marriage Act, 1955 (HMA) :

It states that the parties to the marriage should not be sapindas of each other unless their custom or usage permits such a marriage.

Who are Sapindas

  • Sapindas are relatives who share a common ancestor and offer pinda (rice balls) to the same ancestor in a shraddha ceremony. 
  • The sapinda relationship extends up to the third generation in the line of ascent through the mother, and the fifth generation in the line of ascent through the father. 
  • If two persons are sapindas of each other and their custom or usage does not allow their marriage, then their marriage is null and void under the HMA. 
  • Sapinda relationships for 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 the sapinda relationship, or if they have a common lineal ascendant who is within the limits of the sapinda relationship concerning 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’ grandparents, 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 no established custom 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.

The rationale behind banning Sapind’s marriage

  • To prevent incestuous marriages.
  • To preserve the sanctity of the Hindu family system. 
  • To avoid genetic defects and diseases that may arise from inbreeding. 
  • To promote social harmony and integration by expanding the circle of kinship and alliance.
  • To respect the religious and cultural norms that consider Sapinda marriage as a taboo or a sin.

Some 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:

  • Balusami Reddiar v. Balakrishna Reddiar (1956) and Shakuntala Devi v. Amar Nath (1982), the High Court of the respective state upheld the restriction on Sapinda marriages.
  • 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 marriages around the world:

  • In France, the crime of incest was abolished under the Penal Code of 1810, so long as the marriage was between consenting adults.
  • The Republic of Ireland recognized same-sex marriages in 2015, but the law on incest has not been updated to include individuals in same-sex relationships.
  • 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.

Despite many rationales behind the ban on Sapind marriage, many people may argue that there are some pros of sapind marriage, such as: 

  • It may strengthen the bond and solidarity of the family or clan. 
  • It may reduce the risk of conflicts or disputes over property or inheritance.
  • It may preserve the purity and continuity of the lineage or caste. 
  • It may avoid the complications or adjustments of marrying into a different family or culture. 

These arguments are based on the assumption that sapind marriage is a part of the tradition or custom of the parties, and that they have the consent and approval of their families and communities. However, these arguments may not be valid or acceptable in modern society, where individual rights and choices are valued more than collective norms and obligations. Moreover, sapind marriage may also have some cons, such as: 

  • It may increase the chance of genetic defects or diseases in the offspring. 
  • It may violate the human rights and dignity of the parties, especially if they are forced or coerced into such a marriage. 
  • It may create social stigma or ostracism for the parties and their children, as sapind marriage is generally considered taboo or a sin. 
  • It may undermine the diversity and dynamism of the society, as sapind marriage may limit the scope of intermingling and exchange of ideas and values. 

Therefore, sapind marriage is a complex and controversial issue, which may have some pros and cons depending on the perspective and context of the parties involved. However, the law and society generally discourage and prohibit sapind marriage, as it may have more negative than positive consequences for the parties and their offspring.

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