Section 5 of the Act of 1955 prescribes conditions for a valid Hindu Marriage. A marriage may be solemnized between any two Hindus if the conditions given in section are fulfilled. In this article, we shall study the fourth condition prescribed in the section i.e. No marriage within the degrees of prohibited relationship.

Section 5: the Hindu Marriage Act, 1955:

Condition 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 of 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 or epilepsy;
(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;
(vi) (Omitted)

Section 5 (iv) of the Hindu Marriage Act, 1955:

The parties to the marriage should not be within the degrees of prohibited relationship unless a custom or usage governing each of them permits such a marriage:

Under this clause, a marriage between persons who are within the degrees of prohibited relationship with each other is prohibited. Under the ancient Hindu Law also, such a marriage was not allowed. The Hindu texts went to the extent of prohibiting a man marrying a girl even of the same “gotra” or “pravara” on the theory that his father and the girl’s father were both descendants of a common ancestor in the male line and all such marriages were held invalid until the Hindu Marriage Disabilities Removal Act, 1946 was passed.  

This requirement of a valid Hindu marriage specified in Section 3(iv) is mandatory, and its contravention will render a marriage void unless such a marriage is sanctioned by custom or usage of both the parties.

Reason of Prohibition:

Marriage between parties related to each other within the degrees of prohibited relationship is forbidden to prevent:
a) physical degeneracy of the race which the marriage between near relations would lead to;
b) moral degeneracy and consequent evil results which are apt to affect a society built on the edifice of the joint family system

Understanding the Provisions:

For understanding this section we have to study Section 3(c), 3(d), 3(g) and 5 simultaneously.

Section 3 Subclauses (c) of the Act defines the terms Full blood” and “half-blood” relations as under.

Section 3 (c) Meaning of terms Full blood” and “half-blood” relationship:

two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives;

Section 3 Subclauses (d) of the Act defines the terms Full blood” and “half-blood” relations as under.

Section 3 (d) Meaning of the term “uterine blood” relationship:

two persons are said to be related to each other by uterine blood when they are descended from a common ancestor but by different husbands.

Explanation:

In Clauses (c) and (d) “ancestor” includes the father and “ancestress” the mother;

Section 3 Subclause (g) of the Act defines the term “”degrees of prohibited relationship” as under.

Section 3 (g) Meaning of “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 or 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.

Explanation:

for the purposes of clauses (f) and (g) relationship includes-

(i) relationship by half or uterine blood as well as by full blood;

(ii) illegitimate blood relationship as well as legitimate;

(iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly.

But if the “custom” or “usage” governing each of the parties to the marriage allows the marriage within the degrees of prohibited relationship, then such marriage will be valid and binding.

Section 5 (iv) of the Hindu Marriage Act, 1955 deals prohibits marriage between persons who are within the prohibited degrees of relationship with each other. The list of degrees of prohibited relationship for a male is given below. A man cannot marry a woman having a relationship with him as under:

1. A female ascendant in the line.
2. Wife of a descendant in the line.
3. Wife of the brother.
4. Wife of the father’s brother.
5. Wife of the mother’s brother.
6. Wife of the grand father’s brother.
7. Wife of the grand mother’s brother
8. Sister.
9. Brother’s daughter.
10. Sister’s daughter.
11. Father’s sister.
12. Mother’s sister.
13. Father’s sister’s daughter.
14. Father’s brother’s daughter.
15. Mother’s sister’s daughter.
16. Mother’s brother’s daughter.

The list of degrees of prohibited relationship for a female is given below. A woman cannot marry a man having a relationship with him as under:

1. Her lineal ascendant likes Father, Father’s Father.
2. The husband of a lineal ascendant.
3. The husband of a lineal descendant.
4. Brother.
5. Father’s brother.
6. Mother’s brother.
7. Brother’s son.
8. Sister’s son.
9. Father’s brother’s son.
10. Father’s sister’s son.
11. Mother’s brother’s son.
12. Mother’s sister’s son.

Under this clause, a marriage between persons who are within the degrees of prohibited relationship with each other is prohibited. Under the ancient Hindu Law also, such a marriage was not allowed. This requirement of a valid Hindu marriage is mandatory, and its contravention will render a marriage void.

Section 5 (iv) allows such marriage if the “custom” or “usage” governing each of the parties to the marriage allows the marriage within the degrees of prohibited relationship. Section 5 (iv) makes such marriage valid and binding.

The custom must not be unreasonable or opposed to public policy. A custom would not be recognized, if it is abhorrent to decency or morality or if it is inconsistent with the practices of good men. A custom prevailing amongst the Jats of Punjab allows marriage with a brother’s widow. In some parts of South India, a marriage of a man with his sister’s daughter is also recognized by custom. In some part of Maharashtra, the girl’s marriage with the father’s sister’s son is valid. In Andhra Pradesh, custom permits marriage with sister’s daughter

A marriage which is performed in breach of this condition is void ab initio under Section 11 of the Hindu Marriage Act, 1955 and a competent Court can declare it to be void, on a petition presented by either party to such a marriage. Further, the persons contravening the provisions of this clause are also liable to be imprisoned or fined (or both) under Section 18(b) of the Act.

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