Source-This post on sapinda marriage has been created based on the article” What are incestuous ‘sapinda’ marriages, and why has Delhi High Court reaffirmed the ban on them? published in” The Indian Express” on 29 January 2024.
Why in the news?
The Delhi High Court has recently rejected a challenge to the constitutionality of Section 5(v) of the Hindu Marriage Act, 1955 (HMA), which prohibits marriage between Hindus if they are “sapindas” of each other.
Background-
In 2007, a sapinda marriage was declared void, prompting the woman to appeal the ruling in the Delhi HC, which was dismissed in 2023. She then challenged the constitutional validity of Section 5(v) of the Hindu Marriage Act, 1955 (HMA), arguing it violates the Right to equality under Article 14. The women argued that sapinda marriages are common even without proof of custom also.
However, the Delhi HC rejected her arguments. The court emphasised the need for stringent proof of an established custom and upheld the regulation of partner choice in marriage.
What is a sapinda marriage?
A sapinda marriage is one between individuals who are closely related to each other. As per section 3 of Hindu Marriage Act, “Two persons are said to be sapindas of each other if one is a lineal ascendant (it means son, grandson) of the other, or if they have a common lineal ascendant who is within the limits of sapinda relationship.”
Sapinda marriage is prohibited within certain generations on both the mother’s and father’s sides.
Mother’s Side: Marriage is forbidden within three generations. Sibling (first generation), their parents (second generation), their grandparents (third generation)
Father’s Side: It extends to five generations. This prohibition would extend up to their grandparents’ grandparent.
Prohibition on Sapinda marriage-
Section 5(v) of the Hindu Marriage Act prohibits sapinda marriages unless there is an established custom that permits the marriage. This means that if there is no established custom, marriage is considered invalid.
Exception to the rule of Sapinda Marriage– When the customs of each individual permits sapinda marriages.
Custom as defined by the Hindu Marriage Act-The definition of the word “custom” is provided in Section 3(a) of the HMA. As per the law, a custom must be continuously and uniformly observed for a long period to gain legitimacy among Hindu.
As per the court, customs should not be unreasonable or opposed to public policy. In the case of a rule that is applicable only to a certain family, the rule should not have been “discontinued by that family”.
Status of sapinda marriage in other countries.
| France | Abolished the crime of incest under the Penal Code of 1810, allowing marriages between consenting adults. |
| Portugal | It does not criminalise incest. |
| Italy | Incest is only considered a crime if it causes a “public scandal.” |
| Belgium | Adopted similar laws under the influence of the French code. |
| Ireland | Laws on incest have not been updated post the recognition of same-sex marriages in 2015. |
| USA | Incestuous marriages are banned in all states except New Jersey and Rhode Island. |
Note-Incestuous: An incestuous relationship is one involving sexual intercourse between two members of the same family.
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