Marriage between first cousins per se illegal under the Hindu Marriage Act, observes Punjab and Haryana High Court

The Punjab and Haryana High Court during the hearing of an anticipatory bail application of a petitioner, who was in live-in relationship with his minor first cousin and wanted to marry her after she turned 18, observed that the marriage between first cousins was per se illegal. A Bench of Justice Arvind Singh Sangwan was hearing the anticipatory bail application on November 19 filed by the petitioner who was facing charges under section 363 (kidnapping) and section 366A (procuring of minor girl) of the Indian Penal Code.

During the hearing, the court noted, “I find that in the present petition also, the petitioner has not disclosed about the fact that he is the first cousin of (the minor) and therefore the submission in the present petition that as and when she attains the age of 18 years, they will perform marriage is also per se illegal”.

Advocate CS Rana appearing for the petitioner submitted before the court that the petitioner and the minor were in a live-in relationship. He brought on record a criminal writ petition filed in the High Court seeking protection for the couple in which the minor had submitted that she was living with the petitioner, whom she described her ‘friend’, out of her own free will and that she feared that her parents would harass her and disturb her ‘peace of mind’. The petitioner had promised in the petition to marry the minor on her attaining majority. The said writ was disposed off with a direction to police to decide the petitioner’s plea for protection.

State opposed the petition on the ground that the petitioner and the minor were ‘Sapindas’

Appearing for the state, DAG Joginder Pal Ratra opposed the current petition submitting that the petitioner and the minor were in fact first cousins as their fathers were siblings. He submitted that the petitioner and the minor were not allowed to marriage by virtue of being ‘sapindas’ under the Hindu Marriage Act and therefore the question of there being a live-in relationship did not arise. He said that the live-in relationship was per se immoral and not acceptable in society.

The petitioner’s counsel sought more time to present arguments to show that the relationship/marriage between the petitioner and the minor was not illegal. The next hearing of the matter has been scheduled on January 11, 2020.

Who are ‘Sapindas’ under the Hindu Marriage Act

Section 5 (v) of the Hindu Marriage Act, 1955 states that a marriage may be solemnised between any two Hindus if the parties are not sapindas of each other, unless the custom or usage governing each of them permits a marriage between the two. Section 3 (f)(i) of the same Act defines sapinda relationship as including up to three generations in the line of ascent of through the mother and up to five generations in the line of ascent through the father. The line is traced upwards in each case from the person concerned who is counted as the first generation. Section 3 (f)(ii) states that two person will be considered sapindas if one is the lineal ascendant of the other within the limits of sapinda relationship or if the two persons have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them. Section 11 of the Act declares a marriage between sapindas as null and void.

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In simple words, under Hindu Marriage Act, a person cannot marry another person within three generations on the side of mother (counting upwards) and a person within five generations on the side of father (counting upwards). So as per law, a person cannot marry another person if he or she falls within five generations upwards on his/her father’s side (e.g. father’s offspring. grandfather’s offspring and so on) and if he or she falls within three generations upwards on his/her mother side (e.g. mother’s offspring, mother’s sister’s offspring and so on). There are several other degrees of prohibited relationships in which marriage cannot be take place .

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