Sapinda marriages

Context:

• Delhi High Court reently rejected a challenge to the constitutionality of Section 5(v) of the Hindu Marriage Act, 1955 (HMA).
• The above section prohibits marriage between two Hindus if they are “sapindas” of each other.
• The court held that if the choice of a partner in a marriage is left unregulated, incestuous relationship may gain legitimacy.

What is a sapinda marriage?

• A sapinda marriage is the marriage 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 Hindu Marriage Act.
• Under section 3(f)(ii) 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.
• Under the provisions of the Hindu Marriage Act, 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, the same 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 which allows such a practice, it will be declared void.
• This mean that the marriage was invalid from the very beginning, and will be treated as though it never took place.

Exceptions to the prohibition against sapinda marriages:

• The sole exception can be found within the same provision of the act.
• The exception allows the marriage when the customs of each individual permits sapinda marriages.
• The definition of the word “custom” is also 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 and such that it has obtained “the force of law”.