Cannot recognise incest tomorrow: Delhi High Court rejects plea challenging bar on Sapinda marriages

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The Delhi High Court on Monday refused to entertain a plea challenging the constitutional validity of Section 5(v) of the Hindu Marriage Act, 1955 which prohibits marriages between Sapinda relatives (distant cousins/ relatives).

A Division Bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora remarked that prohibition against such marriages has been on statute book for years and the Court will have to draw a line if someone tomorrow files a plea seeking recognition of incestuous marriages.

“The law is very clear… Tomorrow someone may come and say an incestuous relationship has been converted into a marriage with the consent of families. Can that be recognized as a valid marriage,” the Court demanded.

We need to draw the line. This prohibition has been there for years. We cannot strike it down like this, the bench underscored.

It then proceeded to dispose of the plea saying that it will pass a detailed order.

Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora
Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora
The Court was dealing with a plea filed by a woman challenging Section 5(v) of the Hindu Marriage Act (HMA).

The Sections says that a marriage may be solemnised between any two Hindus if they are not sapindas of each other.

However, the provision also says that marriage between sapindas can happen if the custom or usage governing each of the partners permits the marriage between the two.

A person can be termed a sapinda if he/ she has a common ancestor relative with other individual within three generations on the maternal side of the family or five generations on the paternal side.

The petitioner had earlier approached the Supreme Court of India challenging the law. However, on December 15, 2023, the apex court asked her to first go to the High Court as in this way, the Supreme Court would have the benefit of the judgement of the High Court if the case were to reach the top court later.

In her plea, the petitioner argued that she was a victim of the misuse of these provisions as her family was approached for marriage in the year 1998 by her ex-husband and his parents. The man was a distant cousin of the petitioners as their fathers were cousins.

They eventually got married as per Hindu rites and ceremonies in December 1998.

The plea alleged that this wedding was a pre-planned, well-crafted criminal conspiracy hatched by the groom’s side as right from the beginning of the marital relations, she was treated with cruelty and physical, mental torture.

In April 1999, the petitioner was asked to leave the matrimonial home by her husband and in-law and they said they do not recognise the marriage. She was pregnant at the time.

Later, the husband filed a plea to declare the marriage void ab initio. The Court declared the marriage void. The decision was upheld by the High Court last year.

The petitioner then moved the Court to strike down/amend Section 5(v) of the Hindu marriage and to provide legitimacy to her marriage.

The plea also sought a direction to declare that her husband and in-laws are guilty of offences including rape for having deliberating misused the Section 5(v) of Hindu Marriage Act to commit crimes against the petitioner

She argued that consanguineous marriages are common in India and her rights under Articles 14 and 21 of India have been grossly violated by the strict interpretation of Section 5 (v) of the Hindu Marriage Act, 1955.

“Not only the Petitioner, but several other women have fallen prey to the sinister plans of criminals like Gagan and their families who are conveniently and evilly misusing and twisting the Section 5 (v) of the Hindu Marriage Act, 1955 in favor of their devilish designs and schemes of fooling innocent girls and their families,” the plea argued.

After consider the case, the Court remarked that the petitioner’s family was aware of the fact that the marriage cannot be recognised and, therefore, ignorance of law cannot be an excuse.

“You always knew this is a prohibited relationship. Ignorance of law is no excuse… Your parents should not have agreed to the marriage,” the Court remarked.

On the argument that such marriages are very common in the country, especially in states like Tamil Nadu and Karnataka, the Court said that Hindu Marriage Act recognises that where such marriages are a part of the custom, they can be recognised as valid marriages.

Petitioner was represented by Advocate Tushar Kumar and his team comprising of advocates Dishani Guha and Junaid Qureshi.

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