Degree of Prohibited Relationships under Hindu law

 Q. 4. What do you understand by the term 'Prohibited Relationship'? What changes have been brought about by the Hindu Marriage Act, 1955 in a prohibited relationships? How does a prohibited relationship between the parties affect a marriage under the Act?

 

Ans. There are some relationships in Hindu marriage in which the marriage cannot be solemnized, such types of relationships are called degrees of prohibited relationship. The main purpose of this rule is to prevent incestuous marriage which is marriages between people of prohibited relationships such as brothers and sisters, children and grandchildren etc.

The original Hindu texts provided for prohibiting a man marrying a - even of the same 'Gotra' i.e., an agnate or Parawar' on the theory at his father and girl's father were both descendants of a common ancestor the male line and all such marriages were held invalid until the Hindu marriage Disabilities Removal Act 1946, was passed and the disability was moved by it.

A man cannot marry a damsel who bears a certain relationship to him d it has been made essential for a valid marriage that the parties must t be within the degrees of the prohibited relationship. The marriage between parties related to each other within the degrees of prohibited relationship forbidden apparently to prevent

1. Physical degeneracy of the each which the marriage between near relations would lead to;

2. Moral degeneracy and consequent evil results which are apt to affect a society limit on the edifice of the joint family system.

According to Section 3(g) of the Hindu Marriage Act, "two persons are said to be within the degrees of prohibited relationship"

 i) if one is a lineal ascendant of the other, or

ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or

iii) if one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or

iv) if the two are brother and sister, uncle and niece, aunt and nephew,or children of brother and sister or of two brothers or two sisters:

Explanation: For the purposes of clauses  (g) relationship includes:

i) relationship by half or uterine blood as well as by full blood;

ii) illegitimate blood relationship as well as legitimate:

ii) relationship by adoption as well as by blood, and all terms of relationship in those clauses shall be construed accordingly".

 

According to Mayne, the following will be within the degree of prohibited relationship of a male: (i) a female ascendant in the line; (ii) wife of a descendant in the line; (iii) wife of the brother; (iv) wife of the father's brother; (v) wife of the mother's brother; (vi) wife of the grandfather's brother; (vii) wife of the grandmother's brother; (viii) sister; (ix) brother's daughter; (x) sister's daughter; (xi) father's sister; (xii) mother's sister; (xiii) father's sister's daughter: (xiv) father's brother's daughter; (xv) mother's sister's daughter; (xvi) mother's brother's daughter.

According to Mayne, the following will be within the degrees of prohibited relationship of a female: (i) her lineal ascendant like father, father's father etc., (ii) the husband of a lineal ascendant; (iii) the husband of a lineal descendant like the son-in-law, husband of son's daughter etc., (iv) brother; (v) father's brother; (vi) mother's brother; (vii) brother's son; (viii) sister's son; (ix) father's brother's son; (x) father's sister's son; (xi) mother's brother's son; (xii) mother's sister's son.

According to Section 5 (iv) of the Hindu Marriage Act, 1955, a marriage may be solemnised if the parties are not within the degree of prohibited relationships, unless the custom or usage governing each of them permits marriage between the two. A marriage between two persons who are related to each other within prohibited degrees is void under Section 11 of the Act and the person procuring a marriage in contravention to this provision would be punishable under Section 18(b) of the Act with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees or with both.

In Smt. Shakuntala Devi v. Amar Nath [AIR 1982 P&H 22] it was held that the conditions of a valid marriage under Section 5(iv) of the Act stand qualified by custom meaning thereby that in the event of custom being established, the marriage despite the prohibited relationship between parties to it would constitute a legal and valid marriage but these customs may be proved to be very old and beyond human memory.

Wherever custom is relied upon, it must be a valid custom as defined in Section 3(a) of this Act. In Venkata v. Subhadra [ILR Mad 548] it was held that a custom permitting marriage with the maternal uncle's daughter is recognised. But, in Balasami Reddiar v. Balakrishna Reddiar [1957 Mad 97], where a custom was pleaded of marrying a daughter's daughter it was held illegal on the ground of immorality although it was a custom in Reddiar community of Tirunalveli District to that effect. Under the provisions of Section 5(iv) when a custom is pleaded in relation to the rule of prohibited degrees for purpose of marriage, each of the spouses should be governed by the custom. It follows that even if one of the spouses is not governed by such a custom, the marriage cannot be held to be valid.

If the bride is bridegroom's son's widow, the bride being the widow of a lineal descendant is in a prohibited relationship and such a marriage is a nullity and the marriage is void under Section 11. In Jagannath v. Sadhu Ram [AIR 1934 Lah 283] , the plea was rejected when it was argued that such a marriage was valid by custom.

A brother's widow is within a prohibited relation for purposes of marriage in the absence of a custom [Sec 3(g)] and such a marriage is void.

References:-

 

Family law---Paras Diwan

Family law—S.R. Myneni

https://www.iilsindia.com/study-material/880413_1617519779.docx

https://legislative.gov.in/sites/default/files/A2007-06.pdf

https://www.slideshare.net/RashmiDubey21/hindu-marriage-act1955

https://www.indianemployees.com/acts-rules/details/hindu-marriage-act-1955

http://www.legalservicesindia.com/article/558/Salient-features-of-the-Hindu-Marriage[1]Act,-1955.html.

http://www.legalservicesindia.com/article/558/Salient-features-of-the-Hindu-Marriage[1]Act,-1955. html

https://www.iilsindia.com/study-material/880413_1617519779.docx