Delhi HC Upholds Prohibition Of Marriage Between 'Sapindas', Says Incestuous Relations May Gain Legitimacy If Partner's Choice Left Unregulated

The Delhi High Court has upheld the validity of Section 5(v) of the Hindu Marriage Act which states that no marriage can be solemnized between parties who are related to each other as “sapindas”, unless it is sanctioned by usage or custom governing them.

A division bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora said that if the choice of a partner in a marriage is left unregulated, incestuous relationship may gain legitimacy.

The court dismissed a PIL moved by a woman seeking striking down of the provision. She was also aggrieved by a family court's order declaring the marriage between her and her distant cousin as null and void as per the said provision. Her appeal against the same was dismissed by a coordinate bench in October last year.

The bench said that the woman failed to set out any grounds for challenging the prohibition encapsulated in the impugned provision and also failed to plead any legal grounds for challenging the restriction imposed therein.

“The petition neither identifies the basis of the said restriction imposed by the State and nor enlists any cogent legal ground for challenging the said impugned Section,” the court said.

It refused to accept the woman's contention that the impugned section is violative of Article 14 of the Constitution of India as the exception 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.

“The Petitioner was unable to prove existence of custom in the facts of her case and has relied upon consent of parents which cannot take the place of custom. This Court therefore, finds no merit in the challenge to Section 5(v) of the HMA Act in the present writ petition,” the court said.

It added: “We are of the considered opinion that, no tenable grounds in law for challenging the said impugned provision have been placed before this Court during arguments or pleaded in the petition.”

However, the bench added that the woman will be at liberty to initiate appropriate legal proceedings against her former husband before an appropriate forum in accordance with law.

Counsel for Petitioner: Mr. Tushar Kumar, Mr. Junaid Qureshi, Ms. Dishani Guha, Ms. Varnika Bajaj and Mr. Rishub Kapoor, Advocates

Counsel for Respondents: Mr. Apoorv Kurup, CGSC, R-1/UOI with Mr. Akhil Hasija, Advocate