everything you need to know about sapinda: Ritwik Tyagi: Lawcirca

Everything you need to know about the Concept of Sapinda

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The Hindu Marriage Act was enacted in the year 1955 in a bid to codify the existing Hindu laws on marriage and other subjects, which until then were based solely upon traditional Shastric laws and teachings derived from the various Smritis, Shrutis and the Shastras. Prior to the enactment, there were wide differences in the practices followed by Hindus across the length and breadth of the country. One of the reasons that the lawmakers felt it necessary to bring in a properly written law on the topic of marriages was the fact that there were several places in India where marriages were incestuous, i.e., between siblings, cousins and other filial relations. Not only was this against the notions of morality and public order, but such marriages also ran opposite to the interests of the society as far as the health of the people at large was concerned.

Marrying within one’s own family would gradually lead to the narrowing of the human gene pool. Natural selection and genetic variation, which are crucial to the continuance of the human race, would be severely impacted if this form of marriage were to continue over three to four generations at a stretch. This would make people far more susceptible to contracting diseases and becoming carriers of genes which transmit hereditary diseases such as thalassemia and haemophilia. Gene variation is very important for the development of society, thus if this variation was wiped out completely, the human race as a whole would face deleterious consequences 

Article 25 of the Constitution of India provides for the “Freedom of conscience and free profession, practice and propagation of religion.”[1] This Article enables every individual in the country to practice and profess any religion of his or her own choosing. However, the scope and extent of this freedom are limited by the restrictions of “public order, morality and health.”[2] Thus, the practise of marrying within one’s own family that was prevalent in many parts of India, violated the limitations laid out in the Constitution of India. As a result, the need to curb these practices was very well justified.

Essentials of Marriage 

With reference to the prevention of incestuous marriages, an essential condition of a Hindu marriage, provided under Section 5 of the Act, mandates that the parties must not be within the degrees of prohibited relationship[3] and they must also not be sapindas of each other[4]. Both these conditions can be done away with in any case where the custom or usage governing each of the parties to the marriage permits such a case of marriage. 

5. Conditions for a Hindu marriage – A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

(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;

Custom and usage have been stated to include any rule which has been in continuous and uniform practice for a long period of time and has since obtained the force of law among a particular family, community, locality or tribe[5]. The rule must not be unreasonable or opposed to public policy, as has been propounded in the case of Balusami Reddiar v. Balakrishna Reddiar[6], where it was held that a custom will not be recognised if it is abhorrent to decency and morality or if it is inconsistent with practices of good men.

Degrees of Prohibited Relationships – Section 3(g) of the Hindu Marriage Act, 1955 provides a definition for the phrase ‘degrees of prohibited relationships’ which is as follows:

(g) 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;”[7]

Therefore, this Section expressly states the various relationships which are prohibited under the Hindu law of marriage. No Hindu can marry another if one of them is a lineal ascendant of the other, or if one is the spouse of a lineal ascendant or descendant of another. Other prohibited relationships include those of brother and sister, uncle and niece, or aunt and nephew. Thus, no marriage between these degrees of relations will be held to be validly solemnized under the Hindu law, unless the custom governing each party sanctions the same. It is pertinent to note that the limitations imposed by the two clauses of Section 05 may often overlap each other. Also, it has been observed by the Court in the case of Shakuntala Devi v. Amarnath, that a marriage which is otherwise valid on all grounds, would not be rendered void by the mere fact that the gotra of the parties was same[8].

Sapinda Relationship – The core of the concept of sapinda lies in the word pinda, which literally means one’s body. Therefore, Vijaneshwara’s theory of sapinda implied the connection of people through the same body, i.e., two people connected through the same body in the form of a common ancestor. This connection between people was defined through the particles of the body they shared with each other. A son was a sapinda to his father and grandfather as they shared the same particles in their bodies. Drawing on this analogy, a son would become a sapinda to his mother and other maternal relations as they too would share the same particles in their bodies.

In contrast, Jimutavahana’s theory on the same subject was based on the notion of oblation. He opined that the meaning of pinda was an offering made to deceased ancestors. Hence, those people who offered oblation, or pind-daan, to the same common ancestor were sapindas of each other.

The Hindu Marriage Act, 1955 rejected the theory of sapindaship by oblation and incorporated Vijaneshwara’s concept after certain modifications, such as relaxing the limits of sapinda relations. In all essence, this novel concept has been included in the law to promote exogamy, i.e., the norm of marrying outside one’s own social group. Section 03(f) of the Act deals with the term sapinda and describes it in the following manner:

(f)(i) sapinda relationship with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation;

(ii) 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;”[9]

Thus, a sapinda relationship extends, by way of ascent, to three generations along the mother’s side and to five generations along the father’s side. The person under the scanner is counted as the first generation for this purpose. In the figure given above, the subject has been taken as the first generation and the parents of the subject are classified in the second generation. If the subject has a relationship with any of the members in the father’s line up to the fifth generation or in the mother’s line up to the third generation, such a relationship would be deemed to be a sapinda relationship under the eyes of the law. However, a relationship between the subject and a member from the sixth generation and upwards in the father’s line or any member from the fourth generation and upwards in the mother’s line would not be a sapinda relationship as it falls outside the limits laid down in Section 03(f) of the Act.

The Dharmashastras too objected to such forms of relationships. For instance, any form of a sexual relationship between a person and his mother, sister or daughter was considered as a sin of the highest order[10]. Thus, as per the provisions of Section 03(f) of the Act, a person falls into the category of sapinda relationship with several persons. Two persons can be sapindas to each other if they are in the limits of sapinda to a common ancestor. Even if one of them is not a sapinda to a common ancestor, then they will not be sapindas to each other.

Conclusion

 In the Objects and Reasons for the Hindu Marriage Act, 1955 it has been stated that the definitions of the terms “prohibited relationship” and “sapinda relationship” are along the lines of the Rau Committee’s Report. The much stricter rule of sapinda relationship laid down in the Smritis, i.e. seven and five degrees, have since been relaxed over the years by customs and therefore, the limits have been kept at five and three respectively. A definition of prohibited degrees was necessary as there is widespread variation in India as to what are the prohibited degrees on account of the great diversity. It was necessary to provide a well defined limit for sapinda relationship as it had been interpreted in different manners by different authors and thinkers, leading to a lot of confusion.

Take, for instance, the case of Karewa marriages prevalent among sections of society in Haryana. This form of marriage is based on a traditional custom where a person married his brother’s widowed wife. Karewa marriages have since been held to be invalid, the Court has observed that the system cannot be promoted under the defence of being a custom as a valid custom must not be opposed to public policy[11]. The concept of ‘Maitri Karar’ in Gujarat is a form of a contract between a man and a woman, one of whom is already married. In South India too, the custom of ‘Desa Achara’ permits marriage between two people falling under the limits of sapinda.

Therefore, the concept of Sapinda, although very complicated, is quite beneficial and necessary for society. The drafters of the Hindu Marriage Act did very well to recognise the need and inculcate a provision for regulating marriages between certain degrees of people.

ENDNOTES

[1] Article 25, The Constitution of India, 1949.

[2] Ibid.

[3] Section 05(iv), The Hindu Marriage Act, 1955.

[4] Section 05(v), The Hindu Marriage Act, 1955.

[5] Section 03(a), The Hindu Marriage Act, 1955.

[6] AIR 1957 Mad 97.

[7] Section 03(g), The Hindu Marriage Act, 1955.

[8] AIR 1957 Mah. 97.

[9] Section 03(f), The Hindu Marriage Act, 1955.

[10] Dr. Paras Diwan, Modern Hindu Law, 16th ed. 2005, p.94.

[11] Jag Nahar Singh v. Sadhuram, AIR 1934 Lah 283.


Ritwik Tyagi

Author

Ritwik Tyagi hails from NLU Nagpur and is an enthusiast in reading and writing. He loves reading, researching and writing creations of his mind. Family law and contract law are his strongest areas. For any clarifications, feedback, and advice, you can reach him at editor@lawcirca.com

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