Delhi High Court reaffirmed the ban on ‘Sapinda’ marriages (GS Paper 2, Judiciary)
Why in news?
- Recently, the Delhi High Court rejected a challenge to the constitutionality of Section 5(v) of the Hindu Marriage Act, 1955 (HMA), which prohibits marriage between two Hindus if they are “sapindas” of each other “unless the custom or usage governing each of them permits of a marriage between the two”.
What is a sapinda marriage?
- A sapinda marriage is one between individuals who are related to each other within a certain degree of closeness. Sapinda relationships for the purposes of the HMA are defined in Section 3 of the Act.
- “Two persons are said to be sapindas of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them,” Section 3(f)(ii) says.
- Under the provisions of the HMA, on the mother’s side, a Hindu individual cannot marry anyone who is within three generations of them in the “line of ascent”. On the father’s side, this prohibition applies to anyone within five generations of the individual.
- In practice, this means that on their mother’s side, an individual cannot marry their sibling (first generation), their parents (second generation), their grandparents (third generation), or an individual who shares this ancestry within three generations.
- On their father’s side, this prohibition would extend up to their grandparents’ grandparent, and anyone who shares this ancestry within five generations.
- If a marriage is found to violate Section 5(v) for being a sapinda marriage, and there is no established custom that allows such a practice, it will be declared void.
- This would mean that the marriage was invalid from the very beginning, and will be treated as though it never took place.
Exceptions to the prohibition against sapinda marriages:
- The sole exception can be found within the same provision. It arises when the customs of each individual permits sapinda marriages.
- The definition of the word “custom” is provided in Section 3(a) of the HMA. It states that a custom has to be “continuously and uniformly observed for a long time”, and should have gained enough legitimacy among Hindus in a local area, tribe, group, or family, such that it has obtained “the force of law”.
- A custom may not be protected even after these conditions are fulfilled. The rule in question must be “certain and not unreasonable or opposed to public policy” and, “in the case of a rule [that is] applicable only to a family”, it should not have been “discontinued by the family”.
On what grounds was the law challenged?
- In 2007, the woman’s marriage was declared void after her husband successfully proved that they had entered into a sapinda marriage, and that the woman was not from a community where such marriages could be considered a custom. This ruling was challenged before the Delhi HC, which dismissed the appeal in October 2023.
- The woman then approached the HC again, challenging the constitutional validity of the prohibition on sapinda marriages. She argued that sapinda marriages are prevalent even when there is no proof of custom. Hence, Section 5(v) which prohibits sapinda marriages unless there is an established custom, violates the right to equality under Article 14 of the Constitution.
- The petitioner also argued that the marriage had received the consent of both families, which proved the legitimacy of the marriage.
What did the High Court say?
- A Bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora held that the petitioner did not provide “stringent proof” of an established custom, which is necessary to justify a sapinda marriage.
- The Delhi HC also held that the choice of a partner in a marriage can be subject to regulation. With this in mind, the court held that the woman did not present any “cogent legal ground” to show that the prohibition against sapinda marriages was violative of the right to equality.
Are marriages similar to sapinda marriages allowed in other countries?
- In several European countries, the laws on relationships that are considered incestuous are less stringent than in India.
- In France, the crime of incest was abolished under the Penal Code of 1810, so long as the marriage was between consenting adults.
- This Code was enacted under Napoleon Bonaparte, and was also enforced in Belgium. A new Penal Code was introduced in Belgium in 1867 to replace the French code, but incest remains legal.
- Portuguese law also does not criminalise incest.
- The Republic of Ireland recognised same-sex marriages in 2015, but the law on incest has not been updated to include individuals in same-sex relationships.
- Under Italian law, incest is a crime only if it causes a “public scandal”.
- In the United States, incestuous marriages are banned in all 50 states, though incestuous relationships between consenting adults are allowed in New Jersey and Rhode Island.
What is the legal dispute over AMU’s minority status?
(GS Paper 2, Social Justice)
Why in news?
- A seven-judge Bench of the Supreme Court (SC) led by the Chief Justice of India (CJI) D.Y. Chandrachud is currently hearing the 57-year-long dispute over the minority character of the Aligarh Muslim University (AMU).
What constitutes ‘minority character’?
- Article 30(1) in Part III of the Constitution empowers all religious and linguistic minorities with a fundamental right to establish and administer educational institutions of their choice.
- Clause 2 ensures that the State maintains ‘equality of treatment’ in granting aid to all educational institutions, irrespective of their minority status. This includes educational institutions at all levels, from primary schools to professional education.
- These institutions enjoy exemptions from the implementation of SC, ST, and OBC reservations in both admissions and employment. Additionally, they can reserve up to 50% of seats for students from their community and exercise greater control over employees compared to other institutions.
- In the T.M.A Pai Foundation (2002) case, the SC clarified that a ‘minority’ is to be determined by the concerned State’s demography, not the national population.
What is the background of the case?
- In 1877, Sir Syed Ahmed Khan, a Muslim reformer, founded the Muhammadan Anglo-Oriental College (MAO College) at Aligarh to address Muslim educational backwardness while protecting Islamic values. The Aligarh Muslim University Act, 1920 (AMU Act) was passed to incorporate the MAO college and the Muslim University Association into AMU.
- In 1951, the AMU Act was amended, removing compulsory religious education for Muslims and the exclusive Muslim representation mandate in the University Court.
- The Act was further amended in 1965, and the powers of the Court were redistributed among other bodies including the executive, with the President of India nominating members to the governing body.
Legal dispute:
- The legal dispute began in 1967 when the SC in S. Azeez Basha versus Union of India (UOI), reviewed the 1951 and 1965 amendments. The petitioners argued that since Muslims established AMU, they had the right to manage it.
- However, a five-judge SC bench upheld the amendments, reasoning that AMU was neither established nor administered by the Muslim minority, highlighting the Act’s enactment through Central legislation. This ruling triggered nationwide protests, leading to the amendment of the AMU Act in 1981, affirming the university’s minority status.
- In 2005, AMU reserved 50% of postgraduate medical seats for Muslim candidates. The Allahabad High Court struck down the reservation policy in Dr Naresh Agarwal vs UOI (2005) holding the 1981 amendment ultra vires. Consequently, in 2006, the UOI and the University appealed to the SC.
- However, in 2016, the UOI withdrew from the appeal, refusing to acknowledge the University’s minority status. The University is now pursuing the case alone.
Issues before the SC:
- The apex court is addressing two issues; the criteria for determining the minority status of an educational institution and whether an institution established under a statute can enjoy such status. While the petitioners argue that AMU is entitled to the minority status, the UOI is now endorsing the S. Azeez Basha verdict.
- Sr. Adv. Rajeev Dhavan relied on the T.M.A Pai Foundation verdict to argue that statutory regulations or State aid, as given to AMU, do not deprive an educational institution of its minority character.
- It was argued that the Act of the legislature merely ‘incorporated’ the university as distinguished from its ‘establishment’ by the minority community under Article 30.
- Solicitor General Tushar Mehta contended that AMU was a ‘loyalist’ institution that had surrendered its rights to the British government and assumed a secular character with the 1920 Act.
- The CJI interjected that AMU’s political inclination does not affect its minority status. The judgment in this case will set a precedent impacting the rights and legal recognition of all minority institutions.
