Delhi High Court reaffirmed the ban on ‘sapinda’ marriages

Subject: Polity

Section: Judiciary

Context:

Delhi High Court this week rejected a plea regarding constitutionality of Section 5(v) of the Hindu Marriage Act, 1955 (HMA), which prohibits marriage between two Hindus if they are “sapindas” of each other.

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The court said that, If the choice of a partner in a marriage is left unregulated, incestuous relationships may gain legitimacy.
If a marriage is found to violate Section 5(v) for being a sapinda marriage, and there is no established custom that 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.

What is a sapinda marriage?

A sapinda marriage is one between individuals who are related to each other within a certain degree of closeness.
Sapinda relationships for the purposes of the Hindu Marriage Act(HMA) are defined in Section 3 of the Act.

Provisions of Hindu Marriage Act:

According to Section 3(f)(ii) of HMA, “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 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.

About customs which permits sapinda marriages:

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”.
It should have gained enough legitimacy among Hindus in a local area, tribe, group, or family, such that it has obtained “the force of law”.

Are marriages similar to sapinda marriages allowed in other countries?

In several European countries, the laws on relationships that are considered incestuous are less stringent than in India.
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 recognised same-sex marriages in 2015, but the law on incest has not been updated to include individuals in same-sex relationships.
Under Italian law incest is a crime only if it causes a “public scandal”.
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.