Delhi High Court upholds law barring marriage of distant relatives | Latest News India - Hindustan Times
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Delhi High Court upholds law barring marriage of distant relatives

By, New Delhi
Jan 25, 2024 01:54 AM IST

The court was considering a plea filed by a woman who had approached court seeking that her marriage be declared legal

The Delhi high court upheld the validity of the Hindu Marriage Act (HMA) provision that prohibits marriage between two people who are distantly related, saying that the consent of parents for a marriage between blood relatives cannot be treated as a custom under the law.

The division bench, which also included justice Manmeet PS Arora, said the woman failed to prove the existence of a custom within her community that legitimises the union (HT ARCHIVE)
The division bench, which also included justice Manmeet PS Arora, said the woman failed to prove the existence of a custom within her community that legitimises the union (HT ARCHIVE)

Two days after it said leaving the choice of marriage partners unregulated could lead to incestuous relationships gaining legitimacy, the court on Wednesday released its detailed judgement which noted that such relationships can only be permitted on the basis of existing customs, which either need to be supported by unassailable proof or be adjudicated on by court.

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“The Petitioner was unable to prove the existence of custom in the facts of her case and has relied upon consent of parents which cannot take the place of custom,” a bench led by acting chief justice Manmohan said in the January 22 order.

“This Court is unable to accept the contention of the Petitioner that the impugned section is violative of Article 14 of the Constitution of India as the exception in the impugned Section is only for marriages between persons on the basis of custom having force of law, which requires stringent proof and its existence is to be adjudicated upon by Court of law,” it added.

Read Here | Right to marry person of choice indelible, family can't object: Delhi High Court

The court was considering a plea filed by a woman who had approached court seeking that her marriage be declared legal. She had married a distant cousin in 1998 with the consent of her parents, but was turned away by her in-laws a year later on the grounds that the marriage did not have legal recognition.

Her husband in 2003 approached district and sessions court in Karkardooma court seeking for the marriage to be declared void. Thefamily court held the marriage void in 2007, saying that though the marriage was solemnised with the consent of both parties, it was illegitimate under Section 5(V) of the HMA which prohibits marriages between sapinda relatives.

Two people are said to be in a sapinda relationship if they share a common ancestor with the other within three generations of the mother and five generations of the father. A marriage in such circumstances is only permitted if there is an existence of a strong tradition or custom.

The division bench, which also included justice Manmeet PS Arora, said the woman failed to prove the existence of a custom within her community that legitimises the union. An appeal before the trial court that she had filed in 2007 was also rejected in October last year. The Supreme Court in December refused to hear a plea filed by her challenging the same provision and asked her to approach the high court.

The court in its 10-page order cited Supreme Court’s ruling in Supriyo alias Supriya Chakraborty and Anr v Union of India (2023), where the apex court, while refusing to grant legal recognition to same-sex couples, held that the right to marriage is a statutory right subject to State’s regulation.

Read Here | Marriage between first cousins illegal: Punjab and Haryana HC

“Hon’ble Judge (justice PS Narasimha) has held that the choice of a partner in marriage is not absolute and is subject to regulations, which includes the exclusions to prohibited degrees. The Supreme Court in the aforesaid opinion noted that Section 5(v) of HMA Act is the State’s intent at societal reform through codification,” the court noted.

In the plea, the woman appearing through advocate Tushar Kumar, had submitted that marriage among blood relatives was an established practice in some southern states, more specifically in Tamil Nadu and Karnataka, where it was protected due to proof of custom. He further said that such marriages are increasingly being solemnised in societies even in the absence of custom and the provision needed to be struck down to protect the interest of women in such relationships.

The plea also contended that the provision was allowing men to exploit women and the abuse of the law amounted to commission of several offences such as rape. In this instance, the woman in the case said she was first approached by her distant cousin for marriage. He later filed a petition seeking the declaration of the marriage as void, despite the fact that they had a child together.

“They said the provision at the hands of certain husbands and their family is nothing short of organised rape and they are nothing more than a bunch of criminals who have misused a legal loophole to commit grave acts of crime against the women, who become their victims, which would otherwise land them in jail for life,” read the plea.

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