Q. One of my friends decided to marry daughter of the mother’s sister. Both of them belong to Hindu community but have two surnames and different Gotra. This type of marriage is prohibited as per their custom. Whether such marriage can be validated or if such marriage is invalid, how to get legal sanctity to such marriage? Whether such marriage can be solemnized after conversion to another religion like Christian or Parsi?
Section 3 of the Hindu Marriage Act 1955 explains about Sapinda relationship and it extends to any person up to 3rd generation ascendant through mother’s lineage and 5 generations and upwards in relation to father’s lineage and with reference to each of them if they have common lineal ascendant within the Sapinda relationship limits. Section 3(g) states about prohibited relationship between 2 persons. Degree of such prohibition will happen when one is a lineal ascendant of other, and if one was wife/husband of lineal ascendant/descendant to other, and if one was wife of brother, mother’s brother, grandmother/grandfather’s brother, and if 2 are brother/sister, uncle/niece, aunt/nephew, children of brother/sister or children of 2 sister/brothers. Since the two come under this section and the First Schedule Part – I of degree of prohibited relationship so it will not be a valid marriage under Hindu Law. The Bombay High Court has told that marriage between persons who are in Sapinda relationship that comes under Section 5(v) of the Hindu Marriage Act has indeed been said as void. Court also confirmed that it would only be void if there was a custom to the contrary in ArunLaxmanraoNavalkar vs MeenaArunNavalkar on(12 April, 2006).
Under Special Marriage Act 1954 a Hindu & a Christian civil marriage will be absolutely valid there need not be any conversion or reconversion of either parties in these kind of civil marriages. Such marriages will be registered and valid marriage certificate will be issued to parties by Registrar of Marriages on the day of marriage itself. Section 4 of Special Marriage Act states the conditions required to solemnise special marriages under the law, i.e. marriage can be solemnised if none of the party to marriage has a spouse living, or is not of unsound mind, and not been under attacks of insanity. Section 4(c) further states that when a male is 21 years and female 18 and if there is a custom governing that one of the party to marriage is permitted then such marriage can be solemnised even if they are within the degree of prohibited relationship.
by Sushma Javare.