Marriage is considered a sacred bond among Hindus, and it is believed to be indissoluble. Before the codification of Hindu laws, the concept of divorce did not exist, and once a couple was termed as husband and wife, this relationship was considered permanent. However, with time and the codification of Hindu laws, a lot of changes have taken place, but one concept has remained constant, which is the prohibition on sapinda marriages. Let us discuss this concept in detail, which has stood tall throughout centuries.

Meaning of Sapinda

The word Sapinda is a Sanskrit term that refers to a common lineage between two people. It can be broken down into two parts: Sa, which means “one” or “same”, and pinda, which refers to the rice ball offered in funeral rituals as a homage to the departed soul and their departed ancestors. It is believed that by making this offering, the ancestors will attain eternal peace. When two individuals offer this homage to the same ancestor, they are considered to be sapindas. This practice is also supported by religious texts like The Mahabharata.

Section 3 of The Hindu Marriage Act, 1955 describes sapinda relationship as a relation that two individuals share with each other through a common lineal ascendant. This common ascendant can be traced up to three generations in the line of ascent through the mother and up to five generations in the line of ascent through the father. The first generation is counted as the person whose lineage is to be considered. It’s important to note that this Act applies to Buddhists, Jains and Sikhs as well.

Theories of Sapinda relationship 

There are two main theories of the sapinda relationship, namely :

(i) Oblation theory

This theory was propounded by Jimutavahana. According to this theory, Hindus believe in ancestor worship, and every year during the period of Shradha, they make offerings to their departed ancestors. These offerings are known as pinda-dana, where “pinda” refers to a rice ball and “dana” means to offer. If two persons make this oblation to a common ancestor, then they will be considered sapindas of each other.

The rule of pinda-dana is that one full pinda each should be offered to three paternal ancestors and one full pinda each to two maternal ancestors. Also, one divided pinda each should be offered to the next three paternal ancestors and one divided pinda each to the next two maternal ancestors. This oblation connects an individual to six of his paternal ancestors and four of his maternal ancestors.

(ii) Theory of Particles

This theory was propounded by Vijnaneshwara. According to this theory, two individuals are considered connected when they share a common ancestor. Vijnaneshwara stated that “Whenever the word sapinda is used, there exist between the persons to whom it is applied a connection with one body, either immediately or by descent”.[i] This implies that they are particles of the same body, and this property makes them sapindas of each other. However, this theory had a major flaw, as it made the definition of sapinda very wide, since relationships based on the same blood can exist in eternal circles. There may exist 10, 20, 50 or 150 or more generations. The jurist realized this complexity and limited the application of his theory by saying that such relationships only exist up to seven degrees on the father’s side and up to five degrees on the mother’s side.

In comparison, Jimutavahana’s theory is ambiguous in nature, but Vijnaneshwara gave the word sapinda a different meaning that brought clarity into his theory and the idea of whom to consider as sapindas. His theory is widely accepted, so much so that the codified modern Hindu law on sapinda relationship is based on it.

Degrees of prohibited relationship 

Section 3 (g) of the Hindu Marriage Act, 1955, specifies the “degrees of prohibited relationship”. This term refers to a group of people with whom one cannot marry, also known as exogamy. The section restricts individuals from marrying someone within their own kinship.

section 3 (g) , Hindu Marriage Act, 1955, states ;

“degrees of prohibited relationship”— 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 of two sisters;

In this clause the word ‘relationship’ also includes :

(i) relationship by full,  half and uterine blood ;

(ii) illegitimate blood relationship as well as legitimate;

(iii) relationship by adoption as well as by blood.[ii]

Conditions for a valid Hindu marriage 

The Hindu Marriage Act, 1955 outlines the conditions required for the solemnization of marriage between two Hindus. Section 5 of the act states :

Conditions for a Hindu marriage.-

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:—

(i)neither party has a spouse living at the time of the marriage;

(ii)at the time of the marriage, neither party—

(a)is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b)though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c)has been subject to recurrent attacks of insanity;

(iii)the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;

(iv)the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v)the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;[iii]

Sapinda marriage and it’s legal status 

Now that we have a clear understanding of the meaning of sapinda, let’s discuss the concept of sapinda marriages. Prior to the Hindu Marriage Act becoming effective, the marriage between Hindus was governed by their personal

religious laws. Even according to these laws, marriage between sapindas was not permitted. Therefore, based on the religious laws, the codified Hindu law that regulates marriages, i.e. The Hindu Marriage Act of 1955, also prohibited sapinda marriages.

Legal status of sapinda marriages :

In India

Section 5(v) of The Hindu Marriage Act, 1955 prohibits marriage between individuals who are sapindas of each other. Such marriages would be void and they have no legal status. However the same section also provides for an exception that is of customs, this exception will be discussed later. While India has a law that prohibits sapinda marriages but it does not have a specific law that prohibits incest , in case of minor, incest is treated as rape according to the provisions of Protection of Children from Sexual Offences Act,2012.

In foreign countries

In USA 

Laws concerned with incest vary from state to state.For example, Rhode Island prohibits incestuous marriages but has no laws against incest in general.The most severe penalties for incest are in Massachusetts, Virginia, Texas

 and Oregon, which punish incest with up to 20 years in prison, Georgia where a penalty for incest is up to 30 years in prison, Wisconsin where the penalty for incest is up to 40 years in prison, and in the states of Colorado, Nevada,  Montana, Idaho and Michigan where a penalty of up to life imprisonment for incest may be given.[iv]

In Italy

Incest is only illegal in Italy if it provokes a public scandal.[v]

Hong Kong

 It is illegal to have sexual intercourse with certain close relatives, even if they are consenting adults. The prohibited relationships are grandfather-granddaughter, father-daughter, brother-sister and mother-son. Punishment is up to 20 years’ imprisonment for male offenders and up to 14 years’ imprisonment for female offenders.[vi]

Sweden

Marriage between first cousins has been legal in Sweden since at least 1686 though first cousins needed a Royal consent in order to marry until 1844, when this consent was removed and marriage between first cousins was fully legal without Royal consent. In September 2023 the Government of Sweden initiated a government inquiry into banning marriage between first cousins. The inquiry is to propose a law prohibiting this kind of marriages by 1 October 2024.

Most of the above mentioned countries have prohibited incestuous marriages while they do not prohibit incestuous relationships. Even the countries that prohibit incestuous relationships have some conditions to declare such relationship as illegal.[vii]

Exception to sapinda marriage

Section 5(v) of The Hindu Marriage Act, 1955 states :

The parties are not sapindas of each other , unless the custom or usage governing each of them permits of a marriage between the two.

The above mentioned section of the HMA provides for an exception where a sapinda marriage can gain legal status. That exception is of a custom or usage , the definition of custom is given in section 3(a) of the HMA :

 the expressions “custom” and “usage” signify any rule which,having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community,  group or family:

      Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family.

In the case of Harihar Prasad v. Balmiki Prasad[viii], it was held that a valid custom should be established by clear and unambiguous evidence, it is only by means of such evidence that the courts can be assured of their existence and they should possess the condition of antiquity and certainty for legal recognition.

In Northern India, the custom of sapinda marriage is relatively uncommon, whereas in Southern India it is quite prevalent. There is a custom called ‘Maman Kalyanam’ in Tamil Nadu, which refers to a marriage between an uncle and his niece. Such a marriage would have been considered a sapinda marriage but this custom has been in practice for so long that it has obtained the force of law, under which such marriages can be solemnized.

Legitimacy of children born out of a sapinda marriage 

A sapinda marriage is considered void, and the parties involved cannot be recognized as husband and wife. However, a question may arise regarding the legitimacy of  the child born out of such a marriage. Section 16(1) of the Hindu Marriage Act (HMA) provides a clear answer to this question. It states that a child born out of a void marriage is legitimate. The parliament may have enacted this section considering the stigmatization that such a child may face. Therefore, children born out of a void marriage have all the same rights as children of a valid marriage, except for the right of coparcenary. According to Section 16(3) of the HMA, children born out of a void marriage are entitled to a share only in the property of their parents, whether it’s ancestral or self-acquired. However, this is limited only to Hindu joint families governed by the Mitakshara law.

Reason behind the prohibition on sapinda marriages

Social reasons :

In most societies around the world, incest is considered a taboo and a sin. The concept of marriage between closely related kins is often difficult for many societies to accept due to their moral beliefs. Before the Hindu laws were codified in India, there was a prohibition on sapinda marriages under personal religious laws. In Hinduism, even far-off relatives are considered part of the extended family, so the idea of marriage between children of the same family is usually met with resentment.

Scientific reasons :

There have been several scientific studies that suggest that the offspring of families who have a history of sapinda marriages may have a higher risk of developing serious illnesses compared to the offspring of non-sapinda marriages. The reason behind this is that if a family’s genes carry an illness and two individuals from the same family marry, their offspring may be born with the same illness. This is because the union of the two parents makes the trait powerful enough to affect the offspring. One example of this is the Habsburg empire, whose members had a history of marrying within the family. As a result, many members of the family had one defect or another. The last king of the Habsburg empire was both physically and mentally challenged, which made it difficult for him to run the empire effectively. This is believed to be one of the reasons that eventually led to the downfall of the empire.

Recent development related to sapinda marriage 

Recently in Neetu Grover v. Union of India & ors, 2024[ix] the Delhi High Court has upheld the constitutional validity of Section 5(v) of The Hindu Marriage Act,  1955.

Factual Background :

• The parties got married in 1998. In 2007, the husband was able to get the marriage declared null and void by a competent court of law. The reason for nullification was that the marriage was in contravention of Section 5(iv) of the HMA.

• The wife filed an appeal before the Delhi High Court to set aside the judgement of the previous court declaring their marriage null and void. However, this appeal was rejected.

• Then, the wife filed another petition challenging the constitutional validity of Section 5(iv) of the HMA. This petition was taken up by the Delhi High Court.

Arguments :

• The petitioner’s counsel argued that the petitioner’s cousin and their family deceived her by making her believe that their marriage was valid, when in fact it was fraudulent.

• The marriage ceremony was attended by both families and all rituals were followed.

• They claimed that marrying among blood relatives is a common practice in southern India, particularly in states like Tamil Nadu and Karnataka.

• The counsel also argued that declaring the marriage null and void would violate the petitioner’s fundamental right to equality and that Section 5(v) of the Hindu Marriage Act is unconstitutional.

Court’s decision  :

The High Court ruled that the petitioner did not provide sufficient evidence to prove that the tradition of sapinda marriage is a well-established practice in their families. Moreover, the petitioner’s claims about the challenged section of the Hindu Marriage Act failed to present any grounds on which the constitutionality of the section can be challenged. The court noted that the choice of a partner can be regulated by law.

“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. 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”

 The Delhi High Court has clarified the constitutional validity of Section 5(v) of The Hindu Marriage Act, 1955 through its judgment.

Conclusion

According to the Hindu Marriage Act of 1955, sapinda relationship is a familial bond that extends up to three generations in the line of ascent through the mother and up to five generations in the line of ascent through the father. It is prohibited for sapindas to marry each other. Recently, the constitutional validity of this prohibition was challenged in the Delhi High Court, but the challenge was ultimately rejected.

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[i] Dr. Paras Diwan, Modern Hindu Law 96 (Allahabad Law Agency, Faridabad, 24th edn., 2019).

[ii] The Hindu Marriage Act, 1955 (Act 25 of 1955), s. 3.

[iii] Supra note ii, s. 5.

[iv] Legality  of  incest, India, available at:en.m.wikipedia.org/wiki/Legality_of_incest (last visited on February 22, 2024).

[v] Prohibition on sapinda marriage, India, available at: drishtiias.com/daily-updates/daily-news-analysis/prohibition-on-sapinda-marriage (last visited on February 22, 2024).

[vi] Supra note iv

[vii] Cousin marriage, India, available at: en.m.wikipedia.org/wiki/Cousin_marriage (last visited on February 22, 2024).

[viii]  AIR 733, 1975 SCR (2) 932.

[ix] Neutral Citation: 2024:DHC:503-DB.

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Author: Arihant Singh Thakur

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