“Go to High Court first:” Supreme Court declines to hear challenge to bar on Sapinda marriages under Hindu Marriage Act

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The Supreme Court on Friday declined to hear a plea questioning the correctness of Section 5(v) of the Hindu Marriage Act, which prohibits marriages between Sapinda relatives (distant cousins/ relatives).

A bench of Justices Aniruddha Bose and Augustine George Masih briefly heard submissions, before asking the petitioner to approach the High Court first.

The Court pointed out that this way, the Supreme Court would also have the benefit of a High Court judgment in the matter if the case were to reach the top court later.

“Why don’t you go to the High Court? Try in the High Court first, don’t make it (Supreme Court) the court of first instance,” Justice Bose orally observed.

Advocate Tushar Kumar appearing for petitioner agreed to the suggestion. The petition was, therefore, disposed of by granting the petitioner liberty to approach the concerned High Court first.

The Court was dealing with a petition filed by a woman, who herself had been married to a Sapinda relative.

The plea before the Court called for striking down or the amendment of Section 5 (v) of the Hindu Marriage Act of 1955.

The same prohibits a marriage between two Hindus who are (distant) cousins or relatives, referred to as Sapinda in Hindi.

The woman claimed that her husband and his relatives later tortured her and sought to drive her out of the marital home, all the while citing the prohibition under Section 5 (v) of the Hindu Marriage Act.

The petitioner argued that the provision had become a convenient and useful tool for men to emotionally, financially, sexually, and societally abuse women who are related to them by way of a Sapinda relationship.

The petitioner claimed that she had been approached for marriage by the relatives of her distant cousin who she eventually married. She submitted that the marriage was celebrated with full-fledged Hindu rites and that a son was later born after the consummation of the marriage.

However, she submitted that the marital relationship was marked by cruelty, torture and abuse by her husband and in-laws, as well as threats that the petitioner-wife would be abandoned.

As and when the petitioner would seek legal or other recourse, her husband and in-laws would cite Section 5(v), the petitioner said.

She was eventually asked to leave the matrimonial home when she threatened them with criminal action, the petitioner added.

The husband went on to file a petition in the trial court to declare the marriage between the parties void ab initio, which was allowed and subsequently upheld by the Delhi High Court in October.

This led to the instant plea before the apex court.

The petitioner asserted that she had been subjected to organised rape by persons who had misused a legal loophole to commit crimes that would otherwise land them in jail for life.

A wife’s fundamental rights to equality before the law and to life and liberty have been grossly violated by the strict interpretation of Section 5 (v) of the Hindu Marriage Act, the petition added.

During today’s hearing, the petitioner’s counsel briefly alluded to the larger issues involved in the case.

“Can a male person in India approach their own distant cousin for marriage, get married, impregnate her, misbehave with her and then run from his responsibilities, file a petition (to annul the marriage) …?” he asked.

In response, the Court said that there were certain reliefs including maintenance, that could be explored by the affected woman under the Protection of Women from Domestic Violence Act (the benefits of which are also extended to unmarried women).

The Court added that it was not extending any legal advise and that it was up to the petitioner to decide on the future course of action.

The plea was filed through advocate Krishna Ballabh Thakur.

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