Source: Indian Express

Introduction

The recent ruling by a division bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora of Delhi High Court dismissing a challenge to the constitutionality of Section 5(v) of the Hindu Marriage Act, 1955 (HMA), sheds light on the intricacies of sapinda marriages and their legal implications.

The court's decision, passed in the case of Neetu Grover v. Union of India & Ors. (2024), underscores the necessity of regulating marital unions to prevent the legitimization of incestuous relationships.

What are Sapinda Marriages?

• Section 3 of the HMA:
  • Sapinda marriages, as defined under Section 3 of the HMA, pertain to unions between individuals who share a close familial lineage.
• Lineal Ascendant:
  • Section 3(f)(ii) outlines that with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation;
  • Section 3(f)(ii) outlines the criteria, stating that individuals are considered sapindas if they share a lineal ascendant within the prescribed limits of sapinda relationships.
• Purpose:
  • Under the HMA provisions, individuals are prohibited from marrying certain relatives within specified generational bounds on both the maternal and paternal sides. This prohibition aims to prevent unions that could potentially lead to incestuous relationships.

What is the Legal Framework and Prohibition?

• Section 5(v) of the HMA:
  • It explicitly prohibits sapinda marriages unless local customs or practices permit otherwise.
  • The law mandates that marriages found in violation of this provision, without established customs validating such unions, are deemed void ab initio, nullifying the marriage as if it never occurred.
• Custom as Exception:
  • The exception to this prohibition lies in the recognition of customs, as delineated in Section 3(a) of the HMA.
  • For a custom to be upheld, it must demonstrate continuity, uniformity, and acceptance within Hindu communities, without being unreasonable or contrary to public policy.

What are Legal Challenge and Judicial Response?

• Case of Petitioner:
  • The petitioner, despite the mutual consent of families and the solemnization of marriage with her husband, faced a declaration of nullity under Section 5(v) of the HMA Act.
  • She asserts that her husband and his family perpetrated fraud by inducing her into believing in the validity of their marriage, only to release themselves from legal obligations through the impugned section of the Act.
  • The petitioner highlighted the prevalence of marriages among blood relatives in southern states like Tamil Nadu and Karnataka, where such unions are protected by custom.
    • However, her inability to prove this custom has led to the nullification of her marriage.
  • She argued that Section 5(v) violates Article 14 of the Constitution by treating her differently.
  • Moreover, she contended that despite the existence of the provision, marriages between sapindas occur commonly, demanding the section's repeal to safeguard the interests of affected women and promote societal liberalization.
• Dismissal:
  • However, the High Court, composed of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora, dismissed the petitioner's arguments.
  • The court emphasized the requirement for stringent proof of established customs to justify sapinda marriages, a burden the petitioner failed to meet.
  • Consequently, the court found no substantive legal basis to deem the prohibition unconstitutional.

What are International Perspectives on Marriage within Sapinda Relationship?

• European Perspective:
  • In Europe, laws concerning incestuous relationships are comparatively lenient compared to those in India.
• France and Belgium:
  • In France, the Penal Code of 1810, enacted during Napoleon Bonaparte's rule, abolished the crime of incest as long as it involved consenting adult marriages.
  • Belgium initially adopted the French Penal Code of 1810 and later introduced its own Penal Code in 1867, yet incest remains legal in both jurisdictions.
• Portugal:
  • Portuguese law also does not criminalize incestuous relationships.
• Republic of Ireland:
  • Despite legalizing same-sex marriages in 2015, the law on incest in the Republic of Ireland does not extend to individuals in same-sex relationships.
• Italy:
  • In Italy, incest is only considered a crime if it results in a "public scandal."
• United States:
  • In the United States, all 50 states prohibit incestuous marriages. However, consenting adult incestuous relationships are permitted in New Jersey and Rhode Island.

Conclusion

The Delhi High Court's affirmation of Section 5(v) of the HMA underscores the state's interest in regulating matrimonial alliances to prevent the normalization of incestuous relationships. By upholding the requirement for established customs, the court ensures that marital unions adhere to societal norms and legal standards. While debates surrounding personal freedoms and cultural practices persist, the judiciary's commitment to upholding constitutional principles remains unwavering.