Should the law related to Sapinda Relationships be amended?

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This article was written by Harshita Motaparthi, a student of Jindal Global Law School.

Introduction

There is no concrete definition for ‘marriage’ in the Hindu Marriage Act, 1955, however, there are conditions for a valid Hindu marriage which are laid down under Section 5 of the Hindu Marriage Act, 1955, which confine this sacramental procedure.

Origin of Sapinda Relationships

The origin of the concept of sapinda relationships dates far back to ancient Indian history and law. This concept was interpreted in different ways by mainly two ancient Hindu schools of thought, Mitakshara and Dayabhaga. According to Mitakshara, the word sapinda defined any person connected by the same ‘pinda’, which essentially dealt with the relationships between parties sharing a blood relation. On the other hand, according to Dayabhaga, sapinda relationships arose from a ‘community in the offering of funeral obligations’, which also essentially dealt with parties connected by the same pinda. Ever since this definition of sapinda relationships have been inferred from the ancient Hindu history and law, several cases were heard in the courts, with varying facts and circumstances. In order to add uniformity to an abstract idea, the Hindu Marriage Act, 1955 substantiated it. However, the sapinda relationships as given in the Hindu Marriage Act, 1955 is different from the one contemplated under the ancient Hindu law. Changes were made to the ancient interpretations. For instance, as far as Mitakshara is concerned, the bride should not fall within seven degrees from the father’s side and five degrees from the mother’s side. The Hindu Marriage Act, 1955, altered this interpretation.

Marriage between Sapindas as per the Hindu Marriage Act, 1955

With respect to the Hindu Marriage Act, 1955, Section 5 deals with the conditions for a Hindu marriage. Section 5(v) of the Act states that a marriage may be solemnized between any two Hindus, if the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. The ground rule of this provision is stated in Section 3(f) of the Act that states that the parties getting married or already married should not be related as far as the third generation (inclusive) in the line of ascent through the mother and the fifth generation (inclusive) in the line of ascent through the father, the line being traced upwards. The party getting married or already married is counted as the first generation.The Act further explains that the relationship includes relationship by half or uterine blood as well as by full blood, illegitimate blood relationship as well as legitimate relationship, and finally, relationship by adoption as well as by blood. For instance, in the case of Arun Laxmanrao Navalkar v. Meena Arun Navalkar[1], it was held that the wife could not claim maintenance from her husband because the husband proved that they were sapindas of one another and that meant that their marriage was null and void. It was also held that the wife could not enter the matrimonial home thereon. If the wife proved that custom or usage permitted their marriage, she could have claimed maintenance but the wife failed to do so. It is not easy to prove the prevalence of a custom or usage because it is characterized by its continuity, longevity, uninterruptedness and acceptance in the society. Similarly in the case of Sharad Dutt v. Kiran[2], the appellant’s mother is the sister of the respondent’s father, thus making the married parties first cousins. Further, there was not a single marriage on record of a marriage between sapindas in their community, thus no custom governed the marriage either. It was held that their marriage was null and void. There have also been cases where the existence of a custom or usage permits a marriage between sapindas. In the case of Marian Eva and Anr. v. State of Himachal Pradesh[3] it was held that the marriage between the two parties is valid since there was a custom governing at least one of the parties permitting such a marriage, notwithstanding that they are sapindas of one another.

Critical Analysis of the Provision

Apart from the fact that the onus of proving the existence of a custom or usage is on the party propounding it, there are other criticisms to this provision as well. The provision in the Act that deals with sapinda relationships leaves a window for doubt with respect to the customs and usages that permit such marriages. It is difficult to comprehend how customs and usages are treated as an exception when the medical field has proved that children born out of marriages between cousins suffer from genetic defects. These children are faced with recessive conditions, where one defective gene is inherited from each parent. First cousins have a 1.5% to 3% increased risk of having a child with birth defects that are inherited as compared to an unrelated couple having children. Researchers say that marriage between cousins, especially, first cousins, doubles the risk of having a baby with genetic defects. The Lancet, a UK based medical journal published a detailed research analysis involving over 11,000 children born out of consanguineous marriages. This research revealed that out of them, 386 had congenital anomalies. This is a stark 3% figure as compared to the 1.6% in children born out of non-blood-relationships.[4]In reality, however, marriages between blood relatives are quite common in many parts of the world. Take into consideration small communities such as the Parsis or Jews, since their inception, these communities did not encourage marriages with parties outside their community. The system of Khaps, often practiced in Haryana condones honor killings of a couple that marries a party belonging to another community or family. The reasons for the preference of consanguineous marriages are most often socially oriented. It is forlorn to see that many states in India, especially in South India, marriages between parties who are sapindas of each other are glorified even though medical evidence shows that it plays an obstructive role with regard to ones health. The fact that customs and usages outweigh the weight of biological damages proves how cynical the whole concept of marriages between sapindas is. With the rise in medical research and advancement, there should be a rise in awareness amongst communities as well. It is absurd how customs and usages are given supremacy when there is medical proof on the other hand proving otherwise.

Recent Developments

The law is constantly changing in order to keep up with the dynamic society and its people. The Hindu Marriage Act, 1955 has been amended several times but however, none of the amendments ever made changes to the provisions relating to sapinda relationships. For instance, The Marriage Laws (Amendment) Bill of 2010[5] and 2013[6], being the most recent till date, amended several provisions relating to Hindu marriages but did not improvise any rule relating to the conditions for a valid Hindu marriage. The recent developments have been stagnant with respect to sapinda relationships and marriages between sapindas.

Conclusion

Marriages between sapindas are declared null and void as per the Hindu Marriage Act, 1955, unless a custom or usage governs it and the party propounding it must prove such a custom or usage. Marriages between sapindas were relatively common in the earlier years but the law now has to take the present generation and lifestyles’ changes into consideration and amend the law accordingly. Not only is it complicated to prove a prevailing custom or usage, but it is also leads to birth defects in their offspring. In conclusion, the provisions dealing with sapinda relationships must be amended because of the unfeasible importance it gives to customs and usages over the importance it gives to medical and biological evidences. At the end of it, the question comes down to why modern India is having a tough time in completely abolishing age-old systems without having any clauses with respect to it in its law.

[1] AIR 2006 BOM 342

[2] II (1997) DMC 643

[3] AIR 1993 HP 7, II (1992) DMC 142

[4] D. Balasubramanian, The Biology of First Cousin Marriages (last updated July 11, 2013) The Hindu, http://www.thehindu.com/sci-tech/health/the-biology-of-first-cousin-marriages/article4902050.ece

[5]http://www.prsindia.org/uploads/media/Marriage%20Laws/Marriage%20Laws%20Bill%202010.pdf

[6]http://www.prsindia.org/uploads/media/Marriage%20Laws/Marriage%20Laws%20Bill%20as%20passed%20by%20RS.pdf